Methodist Hospital of Kentucky

National Labor Relations Board - Board Decisions

Sep 15, 1995

318 N.L.R.B. 1107 (N.L.R.B. 1995)

1107
318 NLRB No. 122
METHODIST HOSPITAL OF KENTUCKY
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent does not except to judge’s findings and conclu-
sions pertaining to the employee support teams, the threats and no-
talking rule issued by Supervisor Bob Ratliff, the threat by Super-
visor Phyllis Bowling, and the poor evaluation given employee Judy
Webb.
2 Relying on St. Francis Hospital, 271 NLRB 948 (1984), we
adopt the judge’s conclusion that neither our prior determination in
the related representation case nor Sec. 102.67(f) of the Board’s
Rules and Regulations bars our current consideration of whether the
Board has jurisdiction over the Respondent. However, we find it un-
necessary to rely on the judge’s discussion of the purposes underly-
ing Sec. 102.67(f), which appears in the last two paragraphs of sec.
I,E, of his decision.
3 The pertinent text of this resolution appears in sec. I,A, of the
judge’s decision.
4 We find it unnecessary to pass on the judge’s findings concern-
ing whether the January 14, 1991 resolution is preempted by the Act
and therefore void ab initio.
5 Member Cohen would not rely on Management Training, supra,
a case in which he dissented. Rather, he would apply the Res-Care,
supra, standard. Member Cohen agrees with the judge that the City
Commission’s resolution was a sham and that the Respondent re-
tained sufficient control over the terms and conditions of employ-
ment to enable it to engage in meaningful collective bargaining.
Having concluded that the Respondent was subject to Board jurisdic-
tion at all relevant times, and remains so, Member Cohen finds it
unnecessary to decide the question of whether the Board would issue
an in futuro remedial order against an employer who is no longer
subject to Board jurisdiction because of events occurring subsequent
to the commission of unfair labor practices.
Methodist Hospital of Kentucky, Inc. and United
Steelworkers of America, AFL–CIO–CLC.
Cases 9–CA–27863, 9–CA–27932, 9–CA–27938,
9–CA–28003, and 9–CA–28041
September 15, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND TRUESDALE
On July 8, 1994, Administrative Law Judge Wallace
H. Nations issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
Charging Party filed a brief in opposition to the excep-
tions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
The judge found that the Board should assert juris-
diction over the Respondent and that it committed var-
ious unfair labor practices in violation of Section
8(a)(1) and (3) of the Act. We agree that the Board
has jurisdiction and adopt the violations that were
found by the judge, but with regard to the jurisdic-
tional issue we provide further explanation.2
In determining that the Board should assert jurisdic-
tion over the Respondent, the judge relied on several
alternative grounds, including Res-Care, Inc., 280
NLRB 670 (1986). Under the Res Care standard, the
critical inquiry concerned whether the employer re-
tained control over essential terms and conditions of
employees’ employment and examined the scope and
degree of control exercised by the exempt entity over
the employer’s labor relations. Recently, in Manage-
ment Training Corp., 317 NLRB No. 190 (July 28,
1995), the Board majority overruled Res-Care and es-
tablished a new test for the assertion of jurisdiction
over employers who operate pursuant to contracts with
exempt governmental entities. In Management Train-
ing, supra, the Board announced that jurisdiction over
such employers will no longer be determined based on
the standard set forth in Res-Care but rather, in deter-
mining whether to assert jurisdiction, we will now con-
sider only whether the employer meets two criteria: (1)
the definition of ‘‘employer’’ under Section 2(2) of the
Act and (2) the applicable monetary jurisdictional
standards.
Upon careful review, we find that the Respondent
meets both criteria of Management Training. The Re-
spondent, a nonprofit Kentucky corporation, operates a
health care institution in Pikeville, Kentucky, providing
both in-patient and out-patient medical and profes-
sional care services. The judge found that the Re-
spondent received in excess of $250,000 in gross reve-
nues during the 12-month period preceding the
issuance of the instant complaint and also received at
least $50,000 in goods and materials directly from out-
side the Commonwealth of Kentucky. We adopt these
findings and conclude that the Respondent is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and a health care
institution within the meaning of Section 2(14) of the
Act. Therefore, under Management Training, the Board
may assert jurisdiction over the Respondent.
Moreover, even if we were to apply the Res-Care
standard, the Board’s jurisdiction over the Respondent
is warranted here. The judge found that the Pikeville
City Commission’s resolution of January 14, 1991,3
which the Respondent claims changed its relationship
to the City and removed the Board’s jurisdiction, was
a sham transaction.4 Based on the credited evidence,
he further found that after January 14, 1991, the Re-
spondent retained sufficient control over essential
terms and conditions of employment to enable it to en-
gage in meaningful collective bargaining. The record
fully supports these findings.5
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Contrary to the judge’s implication otherwise, the Board does not
restrict jurisdiction over an employer to certain complaint allegations
but rather our prevailing practice is to consider the whole case be-
fore us once jurisdiction is asserted.
1 All dates are in 1990 unless otherwise noted. 2 Res-Care, Inc., 280 NLRB 670 (1986).
Furthermore, in the alternative, we agree with the
judge that the Board should exercise jurisdiction over
the Respondent for the limited purpose of remedying
the unfair labor practices, which occurred several
months before the Pikeville City Commission at-
tempted, albeit unsuccessfully, to remove the Board’s
jurisdiction by passing the January 14, 1991 resolution.
See Princeton Health Corp., 294 NLRB 640 (1989),
enf. denied 939 F.2d 174 (4th Cir. 1991); Children’s
Baptist Home, 215 NLRB 303 (1974).6
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Methodist Hospital of Ken-
tucky, Inc., Pikeville, Kentucky, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
James E. Horner and David Ness, Esqs., for the General
Counsel.
Raymond C. Haley, III, Esq., of Louisville, Kentucky, for the
Respondent.
Pamela T. Robinette, Esq., of Pikeville, Kentucky, for the
Respondent.
Irwin H. Cutler, Jr., Esq., of Louisville, Kentucky, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Based
on charges filed by the United Steelworkers of America,
AFL–CIO–CLC (Union) between September 20 and Novem-
ber 19, 1990,1 the Regional Director for Region 9 ultimately
issued a second consolidated complaint and notice of hearing
dated January 4, 1991, which alleges that Pikeville United
Methodist Hospital of Kentucky, Inc., nee The Methodist
Hospital of Kentucky, Inc. (Hospital or Respondent) commit-
ted a number of acts that violated Section 8(a)(1) and (3) of
the National Labor Relations Act. Respondent filed timely
answer to the complaint, admitting some allegations and de-
nying others. The Respondent also challenges the Board’s ju-
risdiction to hear and decide these matters.
The hearing was held in Pikeville, Kentucky, on May 18–
26, 1993. Briefs and reply briefs were received from the par-
ties on or before October 1, 1993. Based on the entire
record, including my observation of the demeanor of the wit-
nesses and after consideration of the briefs, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
In its answer to the complaint, Respondent raised objec-
tions to the Board’s exercise of jurisdiction in this case. Spe-
cifically, the Respondent questioned the Board’s jurisdiction
on the grounds:
1. That as an entity administered by individuals respon-
sible to the electorate or to elected public officials, the Hos-
pital is exempt from Board jurisdiction under Section 2(2) of
the Act.
2. That as an entity regulated by the City of Pikeville,
Kentucky, in matters of ‘‘wages, hours and other terms and
conditions of employment,’’ the Hospital is precluded from
meaningful bargaining over these matters requiring the Board
to decline jurisdiction under Section 14(c)(1) of the Act.
3. That the revenues from operation of the Hospital are
‘‘owned by the City of Pikeville, Kentucky’’ thereby render-
ing the Hospital as not ‘‘sufficiently engaged in commerce
to warrant the [B]oard’s exercise of jurisdiction . . . pursu-
ant to Sections 2(6), and (7) and 14(c)(1) of the Act.’’
4. That the Regional Director’s Decision and Order in
Case 9–RC–15808, dated July 3, 1991, precluded pursuit of
the within unfair labor practice charges in accordance with
established Board precedent.
The reference to Case 9–RC–15808 arises in connection
with the Union’s petition for the conduct of a representation
election among ‘‘All Non-Professional Employees’’ of the
Hospital. The petition was filed October 29. Following hear-
ings regarding the appropriate unit in Case 9–RC–15808, in
which the City of Pikeville, Kentucky (city), intervened, the
Acting Regional Director for Region 9 issued his Decision
and Order dismissing the petition on July 3, 1991. Therein,
the Acting Regional Director, applying the Board’s Res-Care
doctrine,2 concluded:
Based on the foregoing and the record as a whole,
and noting particularly that the [Hospital’s] ability to
bargain is limited by its obligation to submit any pro-
spective collective-bargaining agreement to the City, an
exempt entity, for approval, I find the [Hospital] lacks
sufficient control over employment conditions to en-
gage in meaningful negotiations. Accordingly, I con-
clude that it would not effectuate the purposes of the
Act to assert jurisdiction herein and I shall dismiss the
petition.
By Order of February 28, 1992, a three-member panel of
the Board, Chairman Stephens dissenting in part, denied the
Union’s request for review of the Regional Director’s Deci-
sion and Order. During the pendency of the Decision and
Order, the Hospital moved for extension of the hearing date
in the instant cases pending ‘‘final resolution by the Board
of the jurisdictional issue’’ in Case 9–RC–15808. The motion
was granted and an Order issued postponing the hearing in-
definitely. On August 13, 1992, following the Board’s denial
of the Union’s request for review of the Decision and Order
in Case 9–RC–15808, the Board issued its order rescheduling
hearing in these cases without comment regarding the ration-
1109METHODIST HOSPITAL OF KENTUCKY
ale for doing so given the outcome of the underlying rep-
resentation case.
On November 2, 1992, the Hospital moved for summary
judgment as to the instant unfair labor practice cases relying
on the lack of jurisdiction of the Board over its affairs as de-
cided in Case 9–RC–15808. The Hospital further argued that
principles established by Board precedent that might other-
wise warrant the exercise of jurisdiction in these cases, de-
spite the final outcome in the representation case, were inap-
plicable.
Both General Counsel and the Union opposed the Hos-
pital’s motion. On the Hospital’s motion, the hearing date in
these cases was extended pending the Board’s disposition of
the Hospital’s Motion for Summary Judgment. By Order
issued by Deputy Secretary Joseph Moore, and dated January
4, 1993, the Board denied the Hospital’s motion seeking
entry of summary judgment. After summarizing the argu-
ments of all parties, the Order denying motion concluded:
Having duly considered the matter, the [Hospital’s]
motion is denied because it raises genuine issues of ma-
terial fact which would best be resolved after a hearing
before an administrative law judge.
Following this Order, on January 25, 1993, the Regional
Director issued an Order rescheduling hearing in the instant
cases, giving rise to the instant proceeding.
A. The Operative Facts Involved in the
Jurisdictional Issue
The Respondent has operated hospital facilities in
Pikeville, Kentucky, since 1923. Until the 1960’s, it operated
a hospital at a different site than at present. In 1966, it pur-
chased the premises of Appalachian Regional Hospital, and
then entered into a series of transactions with the City of
Pikeville enabling it to renovate and expand its building.
To comply with existing state law, the city created a hold-
ing company, the Pikeville, Kentucky Public Hospital Cor-
poration (Corporation) to issue approximately 2 million dol-
lars in tax-exempt bonds to finance the renovation. These
would be paid off over 40 years. Additional funding was ob-
tained through Federal, state, and regional grants, and from
private donations. As part of these arrangements, the Hos-
pital conveyed its ownership interest in the property to the
city without retaining any reversionary interest. The city then
deeded the property to the Corporation. The property is to
be transferred back to the city when the bonds are redeemed
and cancelled.
The parties also executed a series of leases. The Corpora-
tion leased the hospital facility to the city at an annual cost
equal to the bond amortization rate plus related expenses.
The initial lease period was for 1 year. The city was also
granted ‘‘an exclusive option . . . after the one year period,
to renew the Lease from year to year, for periods of one year
at a time, until July 1, 2009.’’ The lease further provides:
that the city is responsible for ‘‘any and all taxes, charges,
and assessments, if any, against the Hospital Project’’; that
the city will pay or ‘‘cause to be paid’’ all charges for utili-
ties and services ‘‘rendered or supplied to the City in con-
nection with its use and occupancy of the Hospital Project’’;
that the city maintain, repair, and, if necessary, replace the
Hospital Project premises; that the city assumes the Corpora-
tion’s obligations, including the purchase of insurance on the
premises and the adoption and approval of an annual budget;
that ‘‘Throughout the effective period of the lease, the Hos-
pital Project will be operated under control and supervision
of the city (either directly or by its sublessee) as a city gov-
ernmental project; that revenues derived from operation of
the Hospital project beyond what are necessary for its oper-
ation, bond amortization, and reserve fund establishment
must be expended only to ‘‘redeem or retire Bonds in ad-
vance of maturity,’’ to finance additional ‘‘capital improve-
ments to the Hospital Project,’’ or ‘‘to enhance and improve
the services and or facilities of the Hospital Project, as deter-
mined by the governing body of the City’’; that the ‘‘City
will not expend any amount or incur any obligations . . . in
excess of the amounts provided for current expenses in the
current annual budget, except on proper justification and res-
olution by the governing body of the City’’; that ‘‘so long
as any Bonds . . . remain outstanding,’’ the city ‘‘will per-
form or cause to be performed’’ annual audits that ‘‘reflect
in reasonable detail the financial condition and records of the
operation of said Hospital project,’’ to be transmitted to and
‘‘kept on file with the Trustee and in the office of the City
Clerk’’; that the city will cause rates and charges for services
to be increased should it appear that ‘‘gross income from the
operation of [the Hospital] is insufficient to enable the City
. . . to make any payment required under the sublease, the
lease or the Mortgage Trust Indenture’’; that ‘‘the City will
(directly or through it Sublessee) comply with all appropriate
[F]ederal and State laws and regulations, including those ap-
plicable to the Hill Burton Act’’ in connection with the oper-
ation of the Hospital; and that the city refrain from the estab-
lishment or use of any other hospital or hospital facilities so
long as the lease is effective.
The city then executed a sublease with the Hospital, giving
the Hospital exclusive control and supervision over the facil-
ity as long as it complied with all the sublease provisions.
The Hospital’s annual cost is equal to the city’s annual
cost. All of these transactions were done solely to permit fi-
nancing in the form of a bond issue for the construction of
a new building and renovation of the existing building.
The sublease further provides that the ‘‘Methodists (the
Hospital) shall manage and operate’’ the hospital facility, and
‘‘supervise the operations of all the departments . . . pursu-
ant to the directions of the City and with the requirements
of all appropriate governmental regulations.’’
Other relevant provisions of the sublease include: city ap-
proval of the annual budget of the Hospital, including any
subsequent ‘‘variations therefrom’’; city approval of ‘‘rates
for the services and facilities’’ charged by the Hospital, and
any ‘‘revisions in such rates’’; the Hospital’s deposit of ‘‘all
funds and revenues derived by the [Hospital] from the oper-
ation of the Hospital Project . . . in a revenue fund account
of the City maintained in such bank(s) as shall be directed
by the City,’’ and subject to disbursement ‘‘as contemplated
by the . . . budget for the cost of maintaining and operating
the Hospital Project, including all wages and compensation
of operating personnel . . . insurance and workmen’s com-
pensation . . . premiums’’; the city’s right to direct the ex-
penditure of excess revenues for early bond retirement, cap-
ital improvement of the hospital facility, or enhancement of
‘‘services and/or facilities of the Hospital’’; the city’s right
to require audits and to inspect the books of the Hospital;
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and, the Hospital’s covenants to remain a ‘‘non-profit and
tax exempt organization,’’ as well as to ‘‘continue to operate
the property herein leased for the public purpose intended, as
permitted by law.’’
The legal significance of the various documents was given
in the testimony of Charles Musson at the representation
hearing. He testified that the method of financing involved
herein is commonly referred to as a ‘‘holding company bond
issue,’’ which, if pursued and implemented correctly, avoids
the strictures of section 157 of the constitution of Kentucky.
Section 157 regulates the incurrence of indebtedness by any
‘‘county, city , town, taxing district or other municipality
. . . .’’ The holding company form of financing involves the
creation of an alter ego corporation by a governmental entity
which, in turn, issues bonds for what must be a ‘‘public
project.’’
A public project under Kentucky law is defined as:
[A]ny lands, building or structures, works or facilities
(a) suitable for and intended for use as public property
for public purposes or (b) suitable for and intended for
use in the promotion of public health, public welfare,
or the conservation of natural resources. . . .
‘‘Hospitals and health care facilities’’ are statutorily recog-
nized as one form of ‘‘public project’’ for which a ‘‘govern-
mental agency’’ may create a ‘‘non-profit corporation to act
as an instrumentality . . . in the financing of public
projects.’’ To qualify as a ‘‘public project,’’ the project must
be owned by the governmental entity or its alter ego, thus
the successive transfers of title from the Hospital to the city,
then from the city to its alter ego, the Corporation. Not only
must the project be owned by the governmental entity or its
alter ego, but, additionally, all attributes of ownership must
be exercised including control over the operation thereof.
Such control over the operation of this public project, with
regard to the bond issue, could have been exercised in one
of two ways. First, the city could have relinquished control
over the day-to-day operating affairs of the Hospital, retain-
ing the right to terminate the sublease, essentially a manage-
ment contract, for any reason on an annual basis. Alter-
natively, the city could retain directional and supervisory
control over the hospital operation of the project.
The city, under the lease and sublease, did retain the right
to terminate the lease with the Corporation, and did vest in
the Hospital, under the sublease, the authority to manage the
Hospital. On notice to the Corporation, at least 90 days pre-
ceding an anniversary date, the city may choose not to renew
its lease for any reason, in which case both the city and the
Hospital must surrender possession of the property to the
Corporation. Should the city surrender its lease, the sublease
automatically terminates and the Hospital loses all rights
under the sublease.
The city did not, until it, through its Mayor, who is also
chairman of the Hospital’s board of directors, learned of the
Union’s organizing campaign exercise any direction or con-
trol over the Hospital’s operation. Since that date, it has gone
through the motions of approving whatever the Hospital has
chosen to do.
Prior to 1990, the city approved the Hospital’s annual
budget only once, in the year the leases were executed. In
June 1971, the Hospital’s proposed budget for fiscal year
1972 was presented to the city commission and approved.
That budget lists the Hospital’s anticipated expenses only in
general terms, with only a single line for all wages and a sin-
gle line for all employee benefits. The minutes of that meet-
ing reflect no discussion of the budget. The city never au-
dited hospital costs or approved rates for patient services, de-
spite sublease provisions requiring such actions.
On June 10, 1972, employees of the Hospital began a
strike against the Hospital. A short time later, the strike was
ratified by the Communication Workers of America, AFL–
CIO (Communication Workers). The strike continued until
October 1974, when the Communication Workers sent the
Hospital a letter terminating the strike and making an uncon-
ditional offer to return to work. Methodist Hospital of Ken-
tucky, 221 NLRB 692 (1975).
When the Hospital refused either to reinstate the striking
employees or hire them as applicants for new employment,
the Communication Workers filed unfair labor practice
charges against the Hospital. While the strike was in
progress, the National Labor Relations Act had been amend-
ed to give the National Labor Relations Board jurisdiction
over nonprofit hospitals. Included in the nonprofit hospital
amendments to the Act was a requirement that employees of
health care institutions must give the institution and the Fed-
eral Mediation and Conciliation Service written notice of
their intention to strike 10 days before commencing the
strike. Because no such notice had ever been given, the Hos-
pital moved for summary judgment in the unfair labor prac-
tice cases.
The Board held that the notice requirement was not appli-
cable in that case because the strike had begun long before
the nonprofit hospital amendments were enacted. On remand,
the administrative law judge ruled that some of the Hos-
pital’s actions violated Section 8(a)(3) and (1) of the Act,
and the Board agreed. Methodist Hospital of Kentucky, 227
NLRB 1392 (1977), enfd. in part 619 F.2d 563 (6th Cir.
1980):
The Administrative Law Judge found, and we agree
for the reasons fully set forth by him, that Respondent
violated Section 8(a)(3) and (1) of the Act by refusing
to reinstate the striking employees when vacancies
arose on or about October 10, 1974. We therefore adopt
his recommended Order requiring immediate and full
reinstatement of the strikers to their former positions or,
if those jobs not longer exist, to substantially equivalent
positions without prejudice, and backpay for loss of
earnings. We shall direct, in addition, that the Respond-
ent discharge, if necessary to accomplish such reinstate-
ments, all employees hired since October 10, 1974, the
date of such application for reinstatement.
The Board also found that the Hospital had committed
some additional violations of Section 8(a)(3) and (1) of the
Act, beyond those found by the judge. Specifically, the Hos-
pital refused to hire former strikers as new employees be-
cause they had ‘‘engaged in union and/or protected concerted
activity.’’
In 1990 the Union began an organizing drive among the
Hospital’s employees. Because of certain actions taken by
the Hospital during that drive, the Union filed a series of un-
fair labor practice charges alleging certain violations of Sec-
tion 8(a)(1) and (3) of the Act. These charges were all filed
1111METHODIST HOSPITAL OF KENTUCKY
during the period from September 20, 1990, through Novem-
ber 19, 1990.
The Acting Regional Director for Region 9 issued a com-
plaint against the Hospital on November 6, 1990, based on
allegations made in Case 9–CA–27863. In its answer, the
Hospital admitted to being an employer engaged in com-
merce within the meaning of the Act. It did not raise any
challenge to the Board’s jurisdiction.
The Acting Regional Director issued an order consolidat-
ing several unfair labor practice cases, and a consolidated
complaint on December 20, 1990. In its amended answer to
the consolidated complaint, the Hospital denied that it was
an employer within the meaning of the Act, and alleged that
it lacked sufficient control over employment relations to en-
gage in meaningful bargaining. The Acting Regional Director
later filed a second consolidated complaint. The Hospital re-
peated the denial of Board jurisdiction made in its answer to
the first consolidated complaint.
The hearing on unit determination issues in Case 9–RC–
15808 began on December 8, 1990, and was concluded on
January 15, 1991. On December 10, 1990 (the Monday fol-
lowing the first 3 days of the hearing), a special meeting of
the Hospital’s directors was held because of the representa-
tion case. The directors passed a resolution to request the
city to intervene in this representation case.
Mr. Haley (at that time, counsel for the city): The
purpose of the document is to indicate that the Meth-
odist Hospital of Kentucky has asked the City to inter-
vene in this proceeding.
Also on December 10, 1990, the city adopted a resolution
authorizing its intervention in that case. Then, on the morn-
ing of January 14, 1991, at a special called meeting, the city
commission passed a resolution effective immediately, alleg-
edly pursuant to its authority retained in the sublease. This
resolution reads:
Whereas, the City of Pikeville, Kentucky, a Third
Class City, created Pikeville Kentucky Public Hospital
Corporation, a non-profit corporation of the City of
Pikeville, Kentucky to hold title to all real estate and
improvements located on the By Pass Road in Pikeville
pursuant to the issuance of Revenue bonds in 1969,
upon which real estate is located a hospital facility;
and,
Whereas, the City of Pikeville, Kentucky and its cre-
ation, Pikeville Kentucky Public Hospital Corporation,
own the hospital facility; and,
Whereas, the City of Pikeville, Kentucky, the
Pikeville Kentucky Public Hospital Corporation and
Methodist Hospital of Kentucky, Inc., a non-profit cor-
poration, entered into a Sublease Agreement dated Jan-
uary 1, 1969, recorded in Deed Book 503, Page 134,
which specifically sets forth that the City of Pikeville,
Kentucky shall lease said real estate and hospital facil-
ity to Methodist Hospital of Kentucky, Inc, on an an-
nual basis; and,
Whereas, pursuant to said Sublease Agreement,
Methodist Hospital of Kentucky, Inc., is authorized to
manage and operate the hospital facility pursuant to the
directions of the City of Pikeville, Kentucky; and,
Whereas, the City of Pikeville, Kentucky has vital
interests in the financial condition of the hospital facil-
ity including, but not limited to, the ongoing availabil-
ity of affordable quality hospital services to citizens of
the City and the surrounding area and the retirement of
Revenue Bonds on which the City of Pikeville, Ken-
tucky, is indebted through the year 2009; and,
Whereas, the terms and conditions of employment,
as well as the number of employees by category or
classification of said hospital facility could critically af-
fect said interests;
Be it hereby resolved, that the City of Pikeville,
Kentucky, by and through its authority retained in the
Sublease Agreement, directs that its sublessor, Meth-
odist Hospital of Kentucky, Inc., shall not enter into
any contract of employment, whether individually ex-
tended or collectively bargained, nor shall it modify
wage rates, hours of work or any employee benefit,
whether pursuant to a written plan or practice, without
the express written consent of the City of Pikeville,
Kentucky or its designated representative.
The purpose of this resolution, according to testimony
given at the representation hearing, was to preclude assertion
of the board’s jurisdiction over the Hospital. There was no
evidence that the city was directly involved in the daily ad-
ministration, operation or management of the hospital facility
or influenced the Hospital’s labor relations prior to 1991.
On the same day, the city commissioners passed another
resolution designating Mayor May to be the person to over-
see the Hospital’s operation on behalf of the city.
The Acting Regional Director rejected the Hospital’s claim
to be a governmental agency or entity administered by indi-
viduals responsible to public officials, and thus concluded
that the Hospital was an employer within the meaning of the
Act. Relying on Res-Care, Inc., 280 NLRB 670 (1986), how-
ever, he concluded that the Hospital no longer retained con-
trol over the essential terms and conditions of employment,
and that the purposes and policies of the Act would not be
served by asserting jurisdiction over the Hospital. The Board
refused to grant review.
A number of witnesses testified about this issue. Frank
Carlton was the city manager for Pikeville from April 1,
1978, to about November 1, 1988. The mayor at that time
was Dr. Hambley, a local physician. As city manager,
Carlton ran the city in the mayor’s absence.
The city had no special duties with respect to the Hospital
during that time, other than by virtue of the Hospital being
the city’s largest customer for services. The city’s only rela-
tionship to the Hospital was as a provider of municipal serv-
ices. The only money it received from the Hospital was for
payment of those services. The Hospital was no different
than any other business operating within the city limits.
It had no responsibility for the Hospital’s daily operations,
did not review the Hospital’s personnel policies, did not re-
view the Hospital’s discipline of employees; and was not re-
sponsible for the Hospital’s hiring of new employees. It did
not review any budget, or budget proposals from the Hos-
pital. The city’s audit did not include an audit of the Hos-
pital, and the city received no audit of the Hospital.
The subject of ownership of the hospital was never
brought to Carlton’s attention, and was never raised during
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a meeting of the city commission. The Hospital was dis-
cussed at the city commission only in connection with pro-
viding municipal services. Carlton does not recall any busi-
ness from the Public Hospital Corporation having been
brought before the city commission. Nor does he recall any
Public Hospital Corporation officers being approved by the
city commission.
Karen Wright Harris has been the clerk of Pikeville since
1988. It is her job to maintain the city’s records. During her
first year as clerk, the Hospital did not submit a budget to
the city. Harris also does not recall any requests from the
Hospital for approval of personnel matters in that year, nor
any communication between the Hospital and the city com-
mission. Even in 1989, the only matter concerning the Hos-
pital that came before the city commission was the appoint-
ment of persons to fill vacancies on the board of the Public
Hospital Corporation.
During the years 1988–1990, there were no requests from
the Hospital for the city to approve any expenditures or to
approve its budget. Audit reports indicate that the bond obli-
gations were being kept current during those same years.
With the exception of one time in the early 1970’s, 1991 was
the first year that the Hospital requested city approval of its
budget.
The city commission has dealt with a multitude of subjects
over the years Harris has been clerk, including work on the
Peach Orchard guard rail, transfer of a cable franchise, sell-
ing a riding mower, and setting the date for Halloween. The
only discussions of the Hospital she could find in city
records, however, pertained to providing municipal services
to the Hospital. Even during 1991–1993, Harris could find no
open vote by the city commission regarding any of the Hos-
pital’s personnel matters.
According to Harris, the city’s records include a number
of documents pertaining to the Hospital that go back earlier
than 1991. She could not say, however, when those docu-
ments were obtained by the city. There was no evidence that
any of those documents were provided to the city prior to
January 1991.
Thomas Webb Huffman served as an elected city commis-
sioner from 1988 to 1990. During his term the Hospital did
not come before the city commission for any reason. The
subject of the Hospital, however, did come up. The city com-
missioners during this period studied the various city com-
mittees and boards looking at how long a term each commit-
tee’s or board’s members served. The commissioners’ study
reached the hospital board, but the Commissioners were told
by the then Mayor Hambley, that this Board was separate
and had nothing to do with the city. The Mayor, who had
served in that position for about 25 years, was a physician
working at the Hospital. At no time while Huffman was a
commissioner did the city exercise any authority over the
Hospital. It did not deal with personnel or budget matters of
the Hospital and did not approve the Hospital’s budget or
study or audit its finances. To the best of Huffman’s knowl-
edge, the Hospital was operated by the Methodist hospital
administration board. There are two boards affecting the
Hospital. One is its board of directors and the other a city
board, the Pikeville Kentucky Public Hospital Corporation.
The members of the latter board were initially appointed by
the city, and thereafter internally filled vacancies as they oc-
curred.
It is Huffman’s understanding that the city owns the real
estate and improvements that make up the physical Hospital.
It is his belief that this property will revert to the Methodist
Church when certain bonds are fully paid. He received this
information from among others, Mayor Hambley. He be-
lieves that the Church gave the Hospital to the city to be able
to secure financing through the city.
Dr. John L. Tummons was the Hospital’s administrator at
the time of the representation case hearing. He had been the
administrator since about October 1989. As administrator,
Tummons managed the Hospital’s operations, and was an-
swerable only to its board of directors. Policies pertaining to
the performance of each department’s work were, at least in
part, a responsibility of each department director. Labor rela-
tions policies, however, were developed by the Hospital’s ad-
ministrator, and applied uniformly to all hospital employees.
Q. Could you give us a little bit more detail about
your input and your formulation into the policies and
procedures of the hospital insofar as they relate to labor
relations?
A. As far as all the personnel policies are concerned,
they’re my responsibility. I’m responsible for develop-
ing those and implementing those.
Tummons, with the assistance of his subordinates, essen-
tially rewrote the book on employee relations policies to
make them uniform throughout the Hospital’s operations.
Only Tummons had authority to change those uniform
policies and procedures.
Q. Now, Dr. Tummons . . . is there any—does any-
one have any authority to change any of the policies or
procedures set forth in this manual other than yourself?
A. No, they do not.
That authority was also spelled out in policy number 1.2
of the policy and procedure manual.
Tummons was also responsible as Administrator for the
Hospital’s ‘‘salary and budget pay system, all as set forth in
policy number 302.2 of the policy and procedure manual.’’
Q. So, is it fair to say, Dr. Tummons, that you’re re-
sponsible for the establishment of all wage rates in the
Hospital?
A. Yes, final authority for those, yes.
Q. Is it fair to say that you’re responsible for the cre-
ation of any new jobs at the Hospital?
A. Final authority for those, yes.
. . . .
Q. Any changes in pay scales or overall compensa-
tion system, that is your final authority to make those
changes?
A. Yes.
Once Tummons was hired, he learned that several areas of
the Hospital’s operations were ‘‘grossly understaffed’’ due to
a lack of recruiting. In most cases, there were not enough
people to fill all of the available positions. Because of the
‘‘desperate shape’’ they were in, Tummons made some key
changes. He implemented a program that would pay a ‘‘re-
cruiting’’ bonus to any employee who successfully recruited
a new employee, and a ‘‘sign in’’ bonus of $2000 for certain
categories of new employees. To receive the ‘‘sign in’’
1113METHODIST HOSPITAL OF KENTUCKY
bonus, the new employee was required to work for the Hos-
pital for 1 year, or pay back a prorated share of the bonus.
Juanita Deskins has been the Hospital’s personnel director
since December 1990, and was the acting personnel director
from July until December 1990. Prior to that she had been
the personnel assistant since 1980. Deskins stated that the
Hospital has submitted information to the city regarding per-
sonnel matters. In 1992, the Hospital first sought city ap-
proval before hiring if the job involved an exception to the
Hospital’s budget. The city also approved hires that were
within the budget. This was not done in 1990.
During 1992, the Hospital hired 150–200 employees.
Deskins could not say how many of these involved excep-
tions to the budget, but that more than one or two hires were
involved. She did not know of any instances in which Walter
May or the city commission had rejected a proposed person-
nel action. If an exception to the budget was involved, the
Hospital might be asked to submit more information. This
additional documentation would not be needed if the hire
was within the budget.
According to Deskins, the Hospital’s administrator has the
final decision on terminations. He has final authority to set-
tle, deny, or act on grievances. He is also responsible for the
overall compensation program. He also has final authority to
clarify the personnel policies. In 1990, he could and did ex-
ercise extensive authority to make changes in the Hospital’s
personnel policies. In 1990–1991, he had the final authority
to approve the decision to fill a particular position.
Prior to 1991, a request for personnel would be submitted
to the administrator. When he signed it, no more was needed
to be done. Sometime in 1991, a new form was adopted.
Deskins prepared the form that included on it a place for the
city’s mayor to sign. She was told by Dr. Tummons, then
the Hospital’s administrator, that the city’s mayor had to sign
off on those forms. She submitted this form for all of the
employees hired in 1992. Walter May, who is both mayor
and chairman of the Hospital’s board, attended personnel
committee meetings. Deskins had no direct conversations
with May, however, about personnel matters.
Walter E. May
May took office as mayor of the city in January 1990 and
was the City’s mayor at the time of hearing. Pikeville has
a city manager form of government, with the day to day op-
eration of the city being the responsibility of the hired man-
ager, with policies and guidelines being set by the elected
city commission and mayor. The commission consists of four
commissioners and the mayor. May is also a member of the
Hospital’s board of directors and became its chairman in
1990.
None of the members of the Hospital’s board are ap-
pointed by the city or any government official. Until Septem-
ber 1991, the Hospital’s board members nominated and se-
lected new members, subject to approval by the Kentucky
annual conference of the United Methodist Church. Since
September 1991, 15 hospital board members are elected by
the hospital board and 9 are elected by the annual conference
of the Church.
All members of the public hospital corporation’s board ini-
tially came from the Hospital’s board. Even now, most mem-
bers of the public hospital corporation’s board are also mem-
bers of the Hospital’s board. The Hospital’s board is much
larger, however, so there have always been members of it
who are not also on the public hospital corporation’s board.
May is not aware of any requirement that members of the
public hospital corporation’s board also be members of the
Hospital’s board; when he testified at the representation case,
however, all but one member of the public hospital’s cor-
poration’s board had also been members of the Hospital’s
board. The sole exception had been a person who served on
both boards, and who then resigned from the Hospital’s
board.
Neither the city nor the public hospital corporation has
performed any independent audit of the Hospital. The city
commissioners, since 1991, have relied on the audit per-
formed by the Hospital. Prior to that they did not see an
audit of the Hospital. The Hospital does not turn over any
profits to the city, nor does the city write any checks to fi-
nance the Hospital’s operations. The person who writes pay-
roll checks for city employees is not the same person who
writes the payroll checks for hospital employees. The city
employees receive different benefits than the hospital em-
ployees.
Although the city approved the Hospital’s budget in 1991,
May stated he did not know whether this had been done
prior to the union campaign. He had previously testified that
this had not been done prior to the union campaign, and he
did not question the accuracy of his prior testimony. He also
agreed that there was not much presented to the city commis-
sion by the Hospital prior to the union campaign. In 1990,
for example, the city did not approve hiring, promotions, dis-
ciplinary actions, applications for leave, changes in duties or
classifications, or other matters pertaining to the Hospital’s
labor relations. Prior to the union campaign, doctor’s con-
tracts were also not presented to the city commission for ap-
proval.
May is personally adamantly opposed to the unionization
of any of the Hospital’s work force. An indication of the
depth of this opposition can be gleaned from his testimony
about how he became aware of the involved union campaign.
May first learned of the union organizing efforts in the sum-
mer of 1990. He described learning of it in the following
manner.
I think my first hint that there was any union activity
at the Hospital—organizing activity—and, this would
have been in August or September of 1990—I was hav-
ing dinner one evening in Pikeville, with my son. And,
there were a couple of men, who were sitting in the
restaurant, who kept glaring at me, and, seemed to be
trying to make me uncomfortable, for some reason.
They were strangers. I didn’t know them. I didn’t men-
tion it to my son. I didn’t want him—to have him par-
ticularly concerned about it. But, as soon as we left
there, I made an effort to find out who these people
were. I found out that one of them was an organizer for
the United Steelworkers. . . . Because it was in a hotel
coffee shop, I asked the owner of the hotel, if he knew
who they were. I, also, asked the police chief, if he
knew who they were. They did not seem like people
that particularly liked me, and, I was just picking up
bad vibes from them. [The chief of police] . . . con-
firmed pretty much what I said. He gave me the name
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the person, and that they were working for the
United Steelworkers.
The police chief, who did not know the people’s identity
when initially asked by May, evidently had the men stopped
and required to identify themselves.
May mentioned the presence of the union men to then
Hospital Administrator Tummons. He told him, ‘‘I made it
perfectly clear to Dr. Tummons, that we did not want to have
a union representing our employees.’’ May was then a mem-
ber of the Hospital’s public relations committee. This com-
mittee attempted to become involved in decisions regarding
the union campaign, but its efforts were, without exception,
dismissed by Tummons as unnecessary. The committee got
little information from Tummons.
According to May, that was Tummons’ attitude on just
about anything regarding the Hospital’s operations. Tummons
did many things without ever going to the Hospital’s board.
For example, he revised the Hospital’s personnel policies,
often without requesting the hospital board’s approval.
As noted earlier, on January 14, 1991, the city commission
passed a resolution purportedly prohibiting the Hospital from
entering into a collective-bargaining agreement. On the same
day, the city commissioners passed another resolution des-
ignating Mayor May to be the person to oversee the Hos-
pital’s operation on behalf of the city.
On February 25, 1991, the city commissioners passed a
resolution requesting the Hospital to rescind certain of its by-
laws that the city believed might be in violation of certain
laws and further requested that the Hospital notify them
when it took the requested action. The Hospital took this ac-
tion in April 1991.
When asked whether the January 14, 1991 resolution re-
stricting collective bargaining was passed because of the
Union’s campaign, May said the answer is ‘‘both yes and
no.’’ He said the resolution was passed because the city did
not want the Hospital to recognize a union. He agreed that
it was passed ‘‘because the Steel Workers Union filed a peti-
tion with the National Labor Relations Board.’’ He agreed
that one of the reasons for adopting the resolution was to de-
feat the jurisdiction of the NLRB. The Regional Director so
found in his Decision and Order resulting from the represen-
tation case. It was passed at a special meeting called on the
morning of January 14, 1991, in order to be used as evidence
in the representation case that afternoon.
Later in January 1991, May sent a letter to all hospital em-
ployees in which he disavowed any intention by the city:
[T]o run the hospital on a day-to-day basis. This is in-
accurate and a gross distortion of the realities of the sit-
uation. The fact is that the City of Pikeville has since
1971 been under a contract with the Methodist Hospital
of Kentucky to operate the hospital. That contract re-
mains in full force and effect. Under that contract, you
have been an employee of the Methodist Hospital of
Kentucky. Nothing has been done to change your em-
ployment relationship with the Methodist Hospital of
Kentucky.
Under this contract, the City of Pikeville retained au-
thority with regard to the overall operation of the Hos-
pital. As a result of the union representation petition,
the City of Pikeville and the Methodist Hospital of
Kentucky simply brought this contractual authority of
the city to the attention of the National Labor Relations
Board. However, this authority of the city is nothing
new. The city has had it ever since the financing for
the hospital construction twenty years ago. A portion of
that debt is still outstanding.
This letter appeared under the city’s letterhead, and was
signed by May as the city’s mayor.
May, in his dual roles as hospital board chairman and
mayor continued to use the January 14, 1991 resolution pure-
ly to avoid Board jurisdiction. In 1990, a dispute arose be-
tween the Hospital and the Kentucky annual conference of
the United Methodist Church, which continued on into 1991.
During the course of the dispute, Reverend Sewell Wood-
ward, a representative of the annual conference, asserted that
the Church owned the Hospital and would sell it if the Hos-
pital directors did not agree to changes in the Hospital by-
laws that the annual conference required. During the course
of the dispute, there was a series of meetings and an ex-
change of correspondence between representatives of the an-
nual conference and of the Hospital. On April 1, Glen S.
Bagby, apparently a representative of the annual conference,
wrote to Pamela Robinette, attorney for the Hospital, in
which he noted:
My understanding is that your hospital board is com-
posed of approximately 3/4 United Methodists, and my
understanding (and all of these understandings are basi-
cally from you and Mayor May) would rather leave the
‘‘ownership of the property’’ issue on the shelf during
the current labor dispute and until it is resolved, assum-
ing for the moment, that this is a successful defense.
This appears to also be what Mayor May desires to do.
Robinette promptly forwarded this letter to May, but May
never told Bagby that that understanding about the ownership
of the Hospital was incorrect. In April 1991, the representa-
tion case was still pending before the Board.
According to May, the Hospital now approves pay in-
creases subject to the city’s approval. Personnel matters are
likewise voted on by the Hospital’s board, and then referred
to the city. Yet regardless of the volume of paper sent from
the Hospital to the city since 1991, it still appears that the
Hospital is running its operation on it own, and the city is
merely rubber stamping its approval on anything the Hospital
either does or wants to do.
Shortly after January 14, 1991, Deskins was told to submit
a form to the hospital administrator for the hiring of any em-
ployee, with a place for the mayor to indicate his approval.
She developed such a form. The form includes all employ-
ees, from the lowest paid to the highly compensated. Al-
though the form includes the rate of pay for hourly employ-
ees, it does not contain the rates of pay for the more highly
compensated salaried employees, an omission that belies any
serious concern by the city about the cost of operation of the
Hospital.
A review of the many documents, which comprise Re-
spondent Exhibit 53, shows that beginning in the fall of 1992
there begin to appear more written requests for greater detail
in documentation. The Order in this case setting the second
amended consolidated complaint for trial is dated August 13,
1992. As the Hospital realized that it would actually be
1115METHODIST HOSPITAL OF KENTUCKY
going to trial in these unfair labor practice cases, it appears
that it began to document its file more completely than pre-
viously. Beginning about October 15, 1992, the Hospital
began for the first time to send transmittal letters to Mayor
May along with the ‘‘Approval Sheets.’’ May was, from
1990 until his testimony in this case, chairman of the Hos-
pital’s board and a member of the Hospital’s executive com-
mittee. As such, he already had the information that his sub-
ordinate, the Hospital’s administrator, communicated to him
in his capacity as Mayor. On some documents on city sta-
tionary, regarding the Hospital’s termination of some em-
ployees, May signed as chairman of the Hospital’s board. He
admitted that his multiple roles sometimes caused confusion.
B. Is the Hospital a Political Subdivision of the City of
Pikeville Within the meaning of Section 2(2) and
Exempt from the Board’s Jurisdiction?
Section 2(2) of the Act, expressly exempts from coverage,
‘‘any state or political subdivision thereof . . . .’’ The politi-
cal subdivision exemption:
[T]raditionally has been limited to (1) entities that are
created directly by the State, so as to constitute depart-
ments or administrative areas of government, or (2) en-
tities that are administered by individuals who are re-
sponsible to public officials or to the general electorate.
[Prairie Home Cemetery, 266 NLRB 678 (1983), citing
Wordsworth Academy, 262 NLRB 438 (1982), and
footnoting to NLRB v. Natural Gas Utility District of
Hawkins County, Tennessee, 402 U.S. 600 (1971).]
Respondent concedes that the Hospital, a separately incor-
porated nonprofit organization was not ‘‘created directly by
the State,’’ and, is not exempt from jurisdiction on that basis.
It does contend that under the circumstances of this case,
however, the terms of the sublease awarded by the city to
the Hospital, and the city’s participation in its affairs, dem-
onstrate that the Hospital is and has always been subject to
the plenary control and direction of elected and/or appoint
officials of the city, and thus is an entity administered by in-
dividuals who are responsible to public officials within the
meaning of the second test for exemption articulated in
Wordsworth Academy, supra.
It also contends that the Hospital was directly created by
the city. This is patently incorrect and an erroneous change
in its position in the representation case. This matter was
ruled upon correctly by the Regional Director in his Decision
and Order of July 3, 1991. Therein he found:
The Employer and City concede that the Employer,
a nonprofit corporation in existence since 1923, was not
created by the City or any other governmental entity
and thus is not exempt from jurisdiction on that basis.
The Parties contend, however, that the Employer shares
the City’s exemption under the second prong of the test
based on the participation and control exercised by pub-
lic officials and/or their appointees in the Employer’s
operation. The argument offered in support of this as-
sertion is not persuasive.
Although some public officials (i.e., the Mayor) and
representatives of the Public Hospital Corporation are
members of the Employer’s board of directors, they are
not subject to confirmation by the City and do not serve
as a consequence of any local ordinance. The record
discloses that the City has no authority to decide the
composition or structure of the Employer’s board of di-
rectors which is, in essence, its policy-making body.
Clearly, neither the board of directors itself nor the in-
dividual members in their capacity as board members
have direct personal accountability to the City or the
general public. See, Morristown Hamblen Hospital As-
sociation, 226 NLRB 76 (1976); Cape Giradeau Care
Center, 278 NLRB 1018 (1986).
The parties also contend that the City’s primary con-
trol over the Employer’s management of the hospital as
enumerated by the sublease’s various provisions are
sufficient to warrant a finding that the Employer shares
the City’s exempt status. As evidence of its plenary
control, the city notes that should the Employer fail to
comply with the terms of the sublease, the City may
immediately terminate the Employer’s right to manage
the publicly-owned facility and may, in fact, cancel at
its option for any reason prior to the sublease’s next re-
newal. The City’s Contractual rights, vis-a-vis the Em-
ployer, however, pertain to the manner in which the
Employer is required to provide services rather than de-
fining its existence as an exempt entity.
Accordingly, based on the foregoing and the record
as a whole, I find that the Employer is not a govern-
mental agency or an entity administered by individuals
responsible to public officials and thus is an employer
within the meaning of Section 2(2) of the Act.
I concur.
C. Is the Hospital Exempt from the Board’s Jurisdiction
Due to Its Inability to Engage in Meaningful
Collective Bargaining?
Respondent takes the position that it will not effectuate the
policies of the Act for the Board to exercise jurisdiction in
this case, given all the circumstances. In his Decision and
Order of July 3, 1991, the Regional Director held:
In Res-Care, Inc., 280 NLRB 670 (1986), the Board
concluded that the decision whether to assert jurisdic-
tion over an employer providing services to an exempt
entity must focus on the control retained by the em-
ployer with respect to ‘‘essential terms and conditions
of employment.’’ If the exempt entity possesses ulti-
mate discretion over basic economic terms, then the
employer cannot engage in meaningful collective bar-
gaining and assertion of jurisdiction is not warranted.
The Employer’s sublease with the city specifically
provides that the management, operation and super-
vision of the hospital shall be ‘‘pursuant to the direc-
tions of the City.’’ Such language, standing alone with-
out any evidence of the city’s participation in, or ap-
proval of, the Employer’s labor relations matters, does
not constitute the type of control necessary to dem-
onstrate that the Employer lacks the capacity to engage
in meaningful bargaining. Nevertheless, given the city’s
recent resolution requiring the Employer to obtain its
express written consent in order to ‘‘enter into any con-
tract of employment whether individually extended or
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
collectively bargained, nor . . . modify wage rates,
hours of work or any employee benefit,’’ it is clear that
the city now acts in a controlling rather than advisory
capacity with respect to wages, benefits, and personnel
policies. See, Board of Trustees of Memorial Hospital
v. NLRB, 624 F.2d 177 (10th Cir. 1980), cited by the
Board in support of its rationale in Res-Care, Inc.,
supra at 673.
The Board will not assert its jurisdiction over an em-
ployer in circumstances when an exempt governmental
entity has the right of disapproval over a collective-bar-
gaining agreement entered into by the employers. See,
Board of Trustees of Memorial Hospital, supra; Ohio
Inns, 205 NLRB 528 (1973).
The Petitioner asserts that the contractual relationship
between the Employer and city did not previously in-
volve any approval by the city of the Employer’s labor
relations and the resolution asserting such control is a
sham transaction devised to evade the Board’s jurisdic-
tion. The Petitioner has not, however, offered any evi-
dence demonstrating that the city will not exercise the
right of approval that it has recently claimed or that its
approval of the Employer’s personnel policies in the fu-
ture will be routinely granted.
Based on this rationale, the Regional Director concluded
that the Board should decline to exercise jurisdiction. I dis-
agree. I believe that the city’s January 14, 1991 resolution
was preempted by the Act, and that the evidence reflects that
the city’s control is a sham designed solely to defeat the
Board’s jurisdiction, based on its continued routine approval
of the Hospital’s operation.
The city commission’s resolution of January 14, 1991,
is preempted by the Act
It should be noted at the outset that this is not the first
time the Respondent has been involved in a Board proceed-
ing. On June 10, 1974, Respondent’s employees went out on
strike. On August 24, 1974, the new amendments to the Act,
creating the new Section 8(g) became effective. A complaint
issued over that strike and it was Respondent’s contention
that there was no merit to the complaint because the striking
employees had not complied with the requirements of the
new Section 8(g). The involved administrative law judge
ruled in 221 NLRB 692 (1975), that the Board did have ju-
risdiction over Respondent, finding that it was an employer
within the meaning of Section 2(2) and (14) of that Act. The
case was remanded by the Board to the administrative law
judge, who again found Respondent to be an employer with-
in the meaning of the Act. (227 NLRB 1392 (1977).) On ap-
peal by the Respondent, the U.S. Court of Appeals for the
Sixth Circuit affirmed the Board’s decision in pertinent part
at 619 F.2d 563 (1980).
There was no change in the Respondent’s status vis-a-vis
the City of Pikeville from the time the Board previously
found Respondent to be a statutory employer until January
1991, a date after all of the alleged violations of the Act had
occurred. The changes that took place after January 1991 had
as their admitted purpose the removal of Respondent from
Board jurisdiction to avoid having its employees having the
right to choose a union to represent them. Mayor May stated
that when he first learned of the current organizing cam-
paign, he went to Dr. Tummons and ‘‘made it perfectly clear
to Dr. Tummons, that we did not want to have a union rep-
resenting our employees.’’ Prior to that date, the city govern-
ment had totally ignored the operations of Respondent. Only
after gaining knowledge of the organizing campaign did the
Hospital seek protection behind the facade of city control of
its operations. I agree with the Charging Party and the Gen-
eral Counsel that even the post-January 1991 actions de-
signed to show city control are only an illusion and not a
reality. May had himself designated by the city commission
to act in its stead to oversee the Hospital’s operation. He was
already doing that in his capacity as chairman of the Hos-
pital’s board of directors. All of the matters involving the
Hospital’s budget and its personnel actions that he had sent
to him as Mayor were available to him prior to their being
sent, and at least with respect to the budget, had his prior
approval as chairman of the board. May, as Mayor, and/or
the city commission did nothing thereafter but grant routine
approval of the Hospital’s actions or requests for action.
As noted earlier, prior to January 1991, the city govern-
ment had totally ignored the operations of Respondent. When
Mayor May was asked if Respondent had ever sought ap-
proval from the city commission for changes in room
charges—before the organizing campaign—May replied, ‘‘I
don’t think they (the Hospital) were presenting much to the
city commission at all, prior to that—no.’’
The General Counsel contends that the city commission’s
resolution of January 14, 1991, expressly passed for the pur-
pose of ousting the Board from jurisdiction, is preempted by
the National Labor Relations Act, and that that resolution
prohibiting Respondent from entering into a collective-bar-
gaining contract is void ab initio. The General Counsel
points out that the Supreme Court has developed two lines
of preemption doctrine in Federal labor law. The first applies
to state laws that would affect conduct arguably protected by
Section 7 or prohibited by Section 8 of the Act and, there-
fore, subject matter that is within the primary jurisdiction of
the Board. See San Diego Bldg. Trades Council v. Garmon,
359 U.S. 236 (1959), where the Court held, at 244–245,
‘‘when an activity is arguably subject to Section 7 or Section
8 of the Act, the States as well as the federal courts must
defer to the exclusive competence of the National Labor Re-
lations Board if danger of state interference with national
policy is to be averted.’’ The Court in Garmon set out two
exceptions to the preemption of state regulation of conduct:
(1) activity of merely peripheral concern to the NLRA; or (2)
conduct that touches ‘‘interests so deeply rooted in local feel-
ing and responsibility that, in the absence of compelling con-
gressional direction, we could not infer that congress had de-
prived the states of the power to act.’’ 359 U.S. at 244.
(Footnote omitted.) The second doctrine proscribes state
intervention in labor relations that Congress intended to leave
unregulated, i.e., recourse by both the employer and union to
self-help. See Machinists v. Wisconsin Employment Relations
Commission, 476 U.S. 132 (1976).
In the instant cases, the city commission has deliberately
interposed itself between Respondent and the Union in an ef-
fort to deprive employees of their rights guaranteed by Sec-
tion 7 of the Act. Mayor May admitted that such was the
purpose of the resolution passed by the city commissioners.
Therefore, the Garmon principle of preemption operates to
preclude the city government from now legislating in this
1117METHODIST HOSPITAL OF KENTUCKY
area. The city commission had refrained from involving itself
in the internal affairs of the Hospital prior to the passage of
this resolution, and subsequent to its passage there is no evi-
dence that the operation of the Hospital has changed in any
way. Thus, these cases are controlled by Division 1287 v.
Missouri, 376 U.S. 74, (1963), in which the Supreme Court
struck down a Missouri law permitting state seizure of struck
public utilities, noting, ‘‘Missouri, through the fiction of ‘sei-
zure’ by the state, has made a peaceful strike against a public
utility unlawful, in direct conflict with federal legislation
which guarantees the right to strike.’’ Of particular relevance
to the instant cases is the Court’s statement that:
Whatever the status of the title . . . acquired by the
State as a result of the Governor’s executive order, the
record shows that the State’s involvement fell far short
of creating a state owned and operated utility whose
labor relations are by definition excluded from the cov-
erage of the NLRA. The employees of the company did
not become employees of Missouri. Missouri did not
pay their wages, and did not direct or supervise their
duties . . . Missouri did not participate in any way in
the actual management of the company, and there was
no change of any kind in the conduct of the company’s
business. As summed up by the Chairman of the State
Mediation Board: ‘‘So far as I know the company is
operating now just as it was two weeks ago before the
strike. [Id.]
The city commission’s resolution is also preempted even
if it is more narrowly viewed as the city commission’s effort
to give the Respondent added economic leverage if faced
with increased employee demands as a result of the Union’s
organizing campaign. The city commission’s conduct, viewed
thusly, is similar to an attempt by the Los Angeles city coun-
cil to condition a taxicab franchise renewal on settlement by
the taxicab company of a labor dispute it had with a union.
In finding the city council’s action preempted, the Supreme
Court stated:
Free collective bargaining is the cornerstone of the
structure of labor relations carefully designed by Con-
gress when it enacted the NLRA [citations omitted].
Even though agreement is sometimes impossible, gov-
ernment may not step in and become a party to the ne-
gotiations. [Citations omitted.] A local government, as
well as the Labor Board, lacks the authority to ‘‘intro-
duce some standard of properly balanced bargaining
power’’ [citations omitted . . . The settlement condition
imposed by the Los Angeles City Council . . . de-
stroyed the balance of power designed by Congress
. . . Golden State Transit Corporation v. Los Angeles,
supra, at 619 (1986).
By limiting Respondent’s power to engage in collective
bargaining, the city of Pikeville has attempted to prevent or
warp a bargaining relationship, which is otherwise protected
by Sections 7 and 9 of the Act.
Though the city commission resolution spoke of the city
commission’s concerns about the effect on the city of the
terms and conditions of Respondent’s employees, this asser-
tion does not permit the city commission or the Respondent
to claim that the employees’ terms and conditions of employ-
ment are so deeply rooted in local sentiment as to bar pre-
emption. Because employees’ terms and conditions always
affect the economic health of local communities and govern-
ments, such an interpretation would permit the exemption to
the preemption doctrine to swallow the doctrine whole.
Moreover, the city commission’s assertion of its purported
interest is itself a sham, given the fact that although the city
commission has had a longstanding interest (since 1971) in
the economic health of the Respondent, the city commission
has not protested Respondent’s failure to submit its budget
to the city on an annual basis despite such a requirement in
the city/Respondent sublease. Finally, even when asserting a
sudden interest in Respondent’s economic status, the
mayor/chairman of Respondent’s board admitted, during the
representation hearing, that he did not know whether Re-
spondent was meeting its other financial obligations. He also
admitted that Respondent could enter into contracts for goods
or service, both of which could have significant financial im-
pact, without the approval of the city. Thus, the resolution
was not intended to give the city commission effective con-
trol over Respondents’ operations, but rather, it was intended
to deprive employees of their Section 7 rights. Moreover,
preemption doctrine aside, it is very questionable whether the
sublease gives the right to the city commission to pass such
a resolution. Barring entering into a collective-bargaining
agreement is certainly not a right specifically retained by the
city in the sublease. And it is not a legitimate concern under
the sublease. The city has a legitimate interest in having the
bonds paid off, and very little else under the sublease.
The Board is not prohibited from voiding an improperly
motivated action that if properly motivated and implemented
would have deprived the Board of its discretionary jurisdic-
tion. In Bishop Randall Hospital, 233 NLRB 441 (1977), the
Board found it had jurisdiction over a private employer, the
Lutheran Homes and Hospitals Society (the Society), which
leased and operated a hospital from a public board of trust-
ees, that board being appointed by county commissioners
pursuant to a Wyoming statute. Jurisdiction was asserted
over the employer even though the leases had been amended
after a union was certified as the collective bargaining rep-
resentative of the hospital’s nurses. It was noted that while
the amendments purported to relieve the Society of much of
its control over labor relations, in reality there was no evi-
dence that the operation of the hospital actually changed. The
Board affirmed the ALJ’s finding that:
[E]ven were it presumed the existence of the new or
additional powers granted by the Society to the Trust-
ees under the . . . lease amendments are sufficient indi-
cia of increased control over the former by the latter to
warrant the Board’s declination of jurisdiction as a gen-
eral premise, I would nevertheless find under the cir-
cumstances of this case such jurisdiction should be ex-
ercised. The Board and the Federal Courts have consist-
ently held a respondent may not circumvent the
issuance of an order designed to remedy its conduct
violative of the Act by interposing a contract it has exe-
cuted, without regard to the apparent (on its face) legal-
ity of the contract in question. [Id. at 446.]
Although the City of Pikeville may have at some point
lawfully carried out what it pretends to carry out at the urg-
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing of Mayor May in the instant cases, it may not now on
behalf of Respondent interpose its tainted resolution to de-
prive the Board of jurisdiction because unit employees have
exercised their Section 7 rights to respond to the Union’s or-
ganizing campaign. See Parma Industries, 292 NLRB 90
(1988); Strawsine Mfg., Co., 280 NLRB 553 (1986). For the
reasons set forth above, I find that the January 14, 1991, city
resolution was void ab initio, and the facts of these cases
support assertion of Board jurisdiction under Res-Care Inc.,
supra, and its companion case Long Stretch Youth Home, 280
NLRB 678 (1986).
In Res-Care, the employer operated a residential job corps
center under a ‘‘cost-plus fixed fee contract’’ with the De-
partment of Labor. Before awarding the contract, DOL had
to approve the employer’s budget line by line. Once the con-
tract was in force, any changes in the employees’ wages or
benefits had to be approved by DOL, and if DOL dis-
approved of these additional expenditures for wages or bene-
fits, it could reduce the contract payment to the employer.
Under these circumstances, the Board found it would not ef-
fectuate the purposes of the Act to assert jurisdiction over
this employer. In Long Stretch, supra, which involved a resi-
dential facility for teenage boys, the Board distinguished Res-
Care and asserted jurisdiction over the employer since, al-
though the Long Stretch facility was required to submit sal-
ary and benefit proposals to the state agency and to provide
certain benefits, the agency did not control the exact levels
of wages and benefits. Moreover, the employer’s funding in
Long Stretch, was not ‘‘cost plus,’’ as in Res-Care, but rath-
er per resident, and thus was not directly tied to the wage
and benefit levels submitted to the agency.
As the Regional Director stated in his representation deci-
sion, prior to the passage of the offending resolution on Jan-
uary 14, 1991, ‘‘there is no evidence that the city was di-
rectly involved in the daily administration, operation or man-
agement of the hospital facility or influenced the Employer’s
labor relations.’’ Further, while the sublease requires annual
audits of the Respondent’s budget, with the exception of the
first year of the lease (1971), there has been no city audit
of hospital costs or city approval of rates for patient services.
It should also be remembered that the city is not providing
the money to fund the Hospital as was the agency in Res-
Care. It should also be noted that Mayor May specifically
informed the Hospital’s employees in his January 1991, let-
ter, that the city’s actions did not constitute a change in their
relationship with the Hospital or the Hospital’s relationship
with the city.
Although the sublease provides that the management, oper-
ation and supervision of Respondent shall be ‘‘pursuant to
the directions of the city,’’ there is absolutely no evidence
that prior to 1991, the city commission ever exercised any
direction over Respondent’s labor relations. There is no con-
vincing evidence that subsequent to 1991 that the city has ac-
tually exercised any control over any aspect of the Hospital’s
operation, save for having it file numerous documents which
May routinely approves, having previously approved, or
known of the action they represent in his role as board chair-
man. In Florence Hicks, 302 NLRB 762 (1991), the Board
asserted jurisdiction over an employer, notwithstanding that
a government contracting officer retained the authority to
disallow costs that increased from the initial proposal, where
the evidence indicated that the authority was not routinely
exercised. In so finding, the Board stated, supra at 765,
‘‘[A]n employer seeking to avoid the Board’s exercise of ju-
risdiction carries the burden of showing that it is not free to
set the wages, fringe benefits, and other terms and conditions
of employment for its employees.’’ Consistent with this
precedent, the mere language in the sublease that the oper-
ations of Respondent will be ‘‘pursuant to the directions of
the city,’’ is insufficient to carry the burden of establishing
the requisite degree of control of its labor relations by the
exempt entity. Having found the city commission’s January
14, 1991, resolution void, I find that the Board should exer-
cise its discretionary jurisdiction under Res-Care.
D. Should the Board Exercise Jurisdiction for the
Limited Purpose of Remedying the Unfair Labor
Practices Found to Have Been Committed
by Respondent?
Although I recommend that the Board exercise its discre-
tionary jurisdiction over Respondent, assuming it decides not
to do so, I would recommend that it at least exercise jurisdic-
tion for the limited purpose of remedying the unfair labor
practices that I have found Respondent engaged in. In this
case, the Board’s decision in the representation case was
based primarily on the city’s resolution in 1991, after the un-
fair labor practices at issue here had already been committed.
Even assuming that resolution was not preempted by the Act,
the circumstances that justified the Board’s decision in the
representation case did not exist until after the unfair labor
practices had already been committed. Prior to that time, the
Hospital and its employees were clearly under the Board’s
jurisdiction. This is evident both from the prior unfair labor
practice case involving the Hospital, and from its answer to
the first unfair labor complaint issued herein. In its numerous
memorandums or letters to employees issued at the time of
the commission of its unfair labor practices, Respondent did
not even hint the Board might not have jurisdiction, and I
believe it should be estopped from asserting this claim, at
least with respect to the unfair labor practices involved in
this proceeding.
The Hospital implies that the Board must look to a subse-
quent determination not to exercise jurisdiction to decide
whether or not to exercise jurisdiction over prior unfair labor
practices. It relies on Screw Machine Products Co., 94
NLRB 1609 (1951), for this proposition. The facts in that
case, however, are distinguishable.
In Screw Machine Products Co., supra, the Board had
twice decided that the employer did not meet its monetary
jurisdictional standards. One determination occurred before
the unfair labor practice charges had been committed, and
the second occurred shortly after those unfair labor practices,
as part of the same organizing drive.
There was no evidence that the employer had ever satis-
fied the Board’s jurisdictional standards, much less that the
Board’s decision in the second representation case was af-
fected by events that had occurred since the unfair labor
practices were committed. Furthermore, the decision not to
exercise jurisdiction was based on the amount of business
being done, rather than on actions taken in order to remove
the Hospital from the Board’s jurisdiction.
In this case, however, the decision in the representation
case was based on actions intended to remove the Hospital
from the Board’s jurisdiction, and to alter the outcome of the
1119METHODIST HOSPITAL OF KENTUCKY
representation case. Those actions were all taken after the
unfair labor practices had already been committed. Prior to
these actions, the Board had previously asserted jurisdiction
over the Hospital. Methodist Hospital of Kentucky, 227
NLRB 1392 (1979).
Thus, the decision in the representation case not to exer-
cise jurisdiction was based on a change in circumstances
since the unfair labor practices were committed. In these re-
spects, Screw Machine Products Co., supra, is distinguish-
able from this case.
The Hospital wants to rely on the city’s January 14, 1991
resolution to absolve it of unfair labor practices that had oc-
curred back in 1990, months before the city’s resolution. The
Board’s decision in Screw Machine Products Co., supra,
does not support the Hospital on this point.
I believe that under the rationale of Children’s Baptist
Home, 215 NLRB 303 (1974), the Board should exercise ju-
risdiction to remedy the unfair labor practices found to have
been committed. It is clear that the employees of the Hos-
pital had every right to believe that the Board had jurisdic-
tion over the Respondent at the time of commission of the
unfair labor practices. It had previously exercised jurisdiction
in Methodist Hospital of Kentucky, supra, the Respondent’s
answer to the first complaint here admitted jurisdiction, and
Respondent’s communications to its employees during the
organizing campaign, while mentioning Board law often, did
not claim that the Board lacked jurisdiction. Charging Party
would read Children’s Baptist Home, supra, as allowing the
remedying of 8(a)(1) violations as well as violations of Sec-
tion 8(a)(3) and (1). As that matter is not entirely clear from
a reading of Children’s Baptist Home, I will leave this legal
determination to the Board. It does seem to me imperative
that the Board remedy the 8(a)(3) violations under the cir-
cumstances. It is rather pointless, however, to remedy the
8(a)(1) violations if the Board is not going to assert its full
discretionary jurisdiction.
E. Consideration of the Jurisdictional Issue is Not
Barred by the Prior Representation Case
Throughout the litigation of these unfair labor practices,
Respondent has contended that since the Acting Regional Di-
rector ruled in 1991 that the Board does not have jurisdiction
over this Respondent, the General Counsel cannot claim that
the Board does have jurisdiction. Counsel for General Coun-
sel asserts that notwithstanding the Board’s decision in the
representation case denying review of the Acting Regional
Director’s decision, the General Counsel is not barred by
Section 102.67(f) of the Board’s Rules and Regulations from
relitigating the issue of whether the Board should assert its
discretionary jurisdiction over Respondent. The General
Counsel also asserts that the Board is not estopped from re-
considering its decision in the prior representation case. In
my opinion, the Board has already ruled on this defense, in
favor of the General Counsel. Its Order of January 4, 1993,
denying Respondent’s motion for summary judgment nec-
essarily ruled that the matter could be relitigated. Though
this Order indicated that there were some factual issues to be
decided, those could only affect a determination of whether
the Board should exercise its discretionary jurisdiction. Addi-
tional fact findings would have no bearing on the matter of
relitigation. Even in the event this is not so, however, I find
the matter may be relitigated herein, Section 102.67(f) of the
Board’s Rules and Regulations notwithstanding.
Section 102.67(f) of the Board’s Rules in relevant part
states, that a denial of a request for review shall preclude the
parties from relitigating, in any related subsequent unfair
labor practice proceeding, any issue which was, or could
have been, raised in the representation proceeding. In inter-
preting this section in Pittsburgh Plate Glass Co. v. NLRB,
313 U.S. 146 (1941), the Supreme Court rejected an employ-
er’s claim that the Board had erred in refusing to receive, in
the unfair labor practice proceeding, evidence on the subject
of the appropriateness of the unit similar to that contained in
the record of the representation proceeding. In so doing the
Court stated, ‘‘the unit proceeding and this complaint on un-
fair labor practices are really one.’’ Id. at 158. In a subse-
quent Board case, which allowed the relitigation of the su-
pervisory status of an individual charged with separate
8(a)(1) violations, the Board commented that, ‘‘The Court’s
‘really one’ case comment was made with reference to the
unit finding in the representation proceeding and the subse-
quent refusal to bargain complaint case based on this unit
finding.’’ Suburban Homes Corp., 173 NLRB 497 fn. 1
(1968). See also Stanley Air Tools, 171 NLRB 388 (1968);
and JAMCO), 294 NLRB 896 (1989).
It appears therefore, the term ‘‘related subsequent unfair
labor practice,’’ as used in Section 102.67(f), normally ap-
plies to ‘‘an 8(a)(5) case based on the representation case
certification.’’ See Greenbrier Hotel, 216 NLRB 721, 723 fn.
5 (1975). The Board, however, recently affirmed without
comment the conclusion of an Administrative Law Judge that
Section 102.67(f) bars relitigation of a jurisdiction question
in a proceeding addressing alleged violations of Section
8(a)(3) and (1) of the Act, where there was no test of certifi-
cation. In Verland Foundation, 296 NLRB 442 (1989), the
employer tried to relitigate the Board’s prior assertion of ju-
risdiction when the employer operated a health care facility
subject to state regulation. The General Counsel argued that
Section 102.67(f) prevented the employer from attempting to
relitigate the jurisdiction issue. The employer argued that
presence of the word ‘‘related’’ in the text of Section
102.67(f) meant that the section was therefore applicable
only to test of certification cases. The Administrative Law
Judge rejected the employer’s theory, noting that the text of
Section 102.67(f) did not contain such a restriction and that
the unfair labor practice case was related to the prior rep-
resentation case because both were ‘‘premised on the issue’’
of the Board’s jurisdiction over the employer. Id. at 443.
Even in the face of this case, I believe that Section
102.67(f) is not a total bar to relitigation of jurisdiction ques-
tions. In St. Francis Hospital, 271 NLRB 948 (1984), involv-
ing a 8(a)(5) allegation, the Board revisited and reversed a
prior decision in a representation case, noting that:
this prohibition against relitigation of representation
issues in a subsequent technical 8(a)(5) refusal-to-bar-
gain situation applies to the parties—the employer and
the union—and does not preclude the Board from re-
considering its own earlier action. [Id. at 949.]
In reliance on St. Francis Hospital, because the General
Counsel was not a ‘‘party’’ in the representation proceeding
within the meaning of Section 102.67(f), the General Coun-
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The General Counsel withdrew this allegation at the hearing.
sel is not barred from placing the jurisdictional question be-
fore the Board in these cases. Nor is the Board precluded
from reconsidering its own earlier jurisdiction decision.
Furthermore, the relitigation of the jurisdictional question
in these cases is not inconsistent with the purposes served by
Section 102.67(f), which include the expeditious holding of
representation elections to permit employees to exercise their
Section 7 rights and similar expeditious implementation of
election decisions. In those situations to allow an employer
to relitigate jurisdictional questions in unfair labor practice
cases in which unions have been certified and employers re-
fused to bargain serves to deprive employees of the right to
collective bargaining that they have achieved through union
certification.
The posture of the instant cases, however, is the opposite
of the posture of the cases to which Section 102.67(f) is usu-
ally applied, for the Regional Director’s decision deprived
the employees access to the Board and the opportunity to
vote in a representation election. Thus, the literal application
of Section 102.67(f) to foreclose consideration of the rep-
resentation argument described below would result in pre-
cisely the effect the rule is normally used to prevent—the
frustration of employee rights.
F. Conclusion with Respect to Jurisdiction
I find the Respondent, Methodist Hospital of Kentucky,
Inc., a nonprofit Kentucky corporation, is engaged in the op-
eration of a health care institution in Pikeville, Kentucky,
providing in-patient and out-patient medical and professional
care services. During the 12 months preceding the issuance
of the complaint, in the course and conduct of its business
operations, it derived gross revenues in excess of $250,000,
and purchased products, goods, and materials valued in ex-
cess of $50,000 directly from points outside the Common-
wealth of Kentucky. Respondent is now, and has been at all
times material to this proceeding, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act and a health care institution within the meaning
of Section 2(14) of the Act.
II. THE INVOLVED LABOR ORGANIZATION
The Union is now, and has been at all times material to
this proceeding, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent has engaged in the
following acts that are in violation of the Act:
1. Acting though Teresa Newsom, (a) discriminatorily re-
moved union literature from Respondent’s bulletin boards;
(b) orally promulgated and thereafter maintained a rule pro-
hibiting employees from talking about the Union except
while on their breaks while permitting nonunion related dis-
cussions; and (c) orally promulgated and thereafter main-
tained a rule prohibiting employees from going to other
floors in its facility to talk about the Union while permitting
employees to go to other floors for other nonwork related
matters. (CP 5(a)(i,ii,iii).)
2. Acting through Lloyd Price, solicited grievances from
an employee in order to discourage employees’ union activi-
ties. (CP 5 (b).)
3. Advised employees working as shift coordinators that
they were supervisory employees without vesting them with
any supervisory authority in order to discourage support for
the Union among employees. (CP 5(c).)3
4. Acting through Lloyd Price, circulated an opinion sur-
vey among employees thereby soliciting grievances of em-
ployees to discourage union activities. (CP 5(d).)
5. Acting through Cheryl Hickman, (a) coercively interro-
gated employees about their union activities and threatened
employees with unspecified trouble if they signed a union
authorization card; (b) coercively interrogated employees
about their union activities; and (c) prohibited employees
from discussing the Union. (CP 5(e)(i,ii,iii).)
6. Acting through Patty Akers, Judy Steffey and other su-
pervisors, engaged in surveillance of employees’ union ac-
tivities and created an impression among employees that
their union activities were under surveillance by Respondent.
(CP 5(f).)
7. Acting through Lois Jones, restricted postings on em-
ployees bulletin boards and prohibited employee from dis-
cussing the Union thereby orally promulgating an overly
broad, no-solicitation rule. (CP 5(g).)
8. Acting through Patty Akers, discriminatorily enforced
Respondent’s access policy to discourage employees’ union
activities. (CP 5(h).)
9. Acting through Judy Steffey, coercively interrogated an
employee concerning the employee’s union sympathies,
threatened the employee with unspecified reprisals in the
event that the employee continued to engage in union activi-
ties, and promised the employee possible promotions should
the employee choose to refrain from union activities. (CP
5(i).)
10. Acting through its security guards and supervisors
Cheryl Hickman and Ron Carter, engaged in surveillance of
an employee to discourage employees’ union activities. (CP
5(j).)
11. Acting through Dr. John Tummons, solicited employ-
ees’ complaints and grievances, promised its employees in-
creased benefits and improved terms and conditions of em-
ployment to discourage employees’ sympathy for and activi-
ties on behalf of the Union. (CP 5(k).)
12. Acting through Lloyd Price and John Tummons, solic-
ited grievances from employees and promised to rectify cer-
tain problems to discourage employees from engaging in
union activities. (CP 5(l).)
13. Acting through Maudie May, Carolyn Jones, Sally
Stamper, Debra Battistello, Jean Shakey, Betty Martin, and
Nina Reynolds and by paying the cost of mailing, assisted,
supported, and approved of the circulation among its employ-
ees of a petition to dissuade the Union from seeking to rep-
resent Respondent’s employees. (CP 5(m).)
14. Acting through Barbara Ratliff, (a) orally promulgated
a rule prohibiting employees from talking about the union
except when on their breaks while permitting nonunion relat-
ed discussions during nonbreak times, and (b) orally promul-
gated a rule prohibiting employees from posting union lit-
erature on its bulletin boards while permitting nonunion re-
lated postings. (CP 5(n)(i,ii).)
15. Acting through Linda Saylor, orally promulgated a rule
prohibiting employees from talking about the Union except
1121METHODIST HOSPITAL OF KENTUCKY
on their breaks while permitting nonunion related discussions
during nonbreak time and restricted the distribution of union
literature to Respondent’s coffeeshop and cafeterias. (CP
5(o).)
16. Acting through Ron White, impliedly threatened an
employee who had been distributing union literature by ask-
ing her to identify herself and asking the location of her su-
pervisor and created the impression that her union activities
were under surveillance by Respondent. (CP 5(p).)
17. Acting through Tommy Williams and another security
guard whose name is unknown, orally told employees that
they could not distribute literature in its parking lots. (CP
5(q).)
18. Acting through Bob Ratliff, (a) orally promulgated a
rule prohibiting employees from talking about the Union
while eating lunch in the paint shop and threatened to pro-
hibit employees from eating lunch in its paint shop to dis-
courage employees’ union activities, and (b) orally promul-
gated a rule prohibiting employees from posting union lit-
erature on their lockers and on bulletin boards while permit-
ting nonunion materials to be so displayed. (CP 5(r)(i,ii).)
19. Acting through Romona Norris, created the impression
that employees were being kept under surveillance because
of their union activities. (CP 5(s).)
20. Acting through Phyllis Bowling, impliedly threatened
an employee by telling her that from now on she should be
nonunion. (CP 5(t).)
21. Acting through Dr. John Tummons, announced that
on-call surgery employees would receive a 25-cent-an-hour
wage increase in on-call pay to discourage employees union
activities. (CP 6(a).)
22. Announced new benefits, including a dental plan, dis-
ability insurance, an increased base wage rate and a tax an-
nuity savings plan to discourage employees from engaging in
union activities. (CP 6(b).)
23. Respondent constructively discharged its employee
Phyllis (Gibson) Campbell. (CP 6(c).)
24. Respondent instituted changes in its job posting, vaca-
tion, and sick leave policies to discourage employees’ sup-
port for the Union. (CP 6(d).)
25. Respondent gave an unsatisfactory evaluation to its
employee Judy Webb. (CP 6(e).)
26. Respondent changed its policy regarding employee
purchases of products and services to discourage employees’
union activities. (CP 6(f).)
27. Respondent changed it birthday holiday policy to dis-
courage employees’ union activities. (CP 6(g).)
28. Respondent disciplined and changed the job duties of
its employee Rapunzel Hall. (CP 6(h).)
29. Respondent discharged its employee Robin Gray. (CP
6(i).)
With respect to each separate issue framed by the com-
plaint, I have noted the paragraph where the alleged activity
is noted in the complaint. The complaint paragraphs are des-
ignated CP followed by the number and letter of the com-
plaint paragraph, and the page number of the discussion is
designated D, p., followed by the involved page number.
A. Did Respondent Unlawfully Solicit Grievances from
Employees and Promise to Rectify Problems in Order
to Discourage Union Support?
This discussion involves complaint paragraphs 5(b), (d),
(k), and (l). Beginning the first week of August, Respondent
hired a consulting firm, SESCO, with the first task of the
consultant being to take a opinion survey of the Hospital’s
employees. Respondent contends that this survey could not
be motivated by antiunion feelings as its inception predates
its knowledge of the union organizing campaign. In this re-
gard, the General Counsel contends that Respondent became
aware of the campaign on July 30, when a list of employee
organizers was attempted to be given to Dr. Tummons.
Amanda Hawkins, an LPN employed by the Respondent tes-
tified that she attended a meeting conducted by the Union on
Sunday, July 29. This meeting was attended by a number of
the hospital employees. She, along with several other em-
ployees, signed a list designating the Union’s employee orga-
nizing committee. The list, marked General Counsel’s Ex-
hibit 10 in this record, contains the names of some 26 em-
ployees and is dated July 29. Hawkins testified that on Mon-
day, July 30, she and some 15 or 20 other employees, took
the list to Dr. Tummons about 8 a.m. He was not in his of-
fice so the employees waited for him and when he arrived,
in the company of a Dr. Fannin, who worked at the Hospital,
Hawkins handed him the list and told him they (the gathered
employees) wanted the Union to represent them. According
to Hawkins, Tummons looked at the list and handed it back
to her, saying he would have to talk with the lawyers. Haw-
kins also testified that about a week earlier, her supervisor,
Shirley Coleman, spoke with some nurses on Hawkins shift,
telling them that she had heard that union organizing or ac-
tivity was going on in the Hospital.
After Tummon’s refused to accept General Counsel’s Ex-
hibit 10, Hawkins took the list back to union organizer and
representative, Ann Kempski, at a local hotel. Kempski said
she would fax the list to Tummons.
Lisa Ann Smith, a RN at the Hospital, testified that she
signed an authorization card in August 1990, but signed the
organizing list on July 29. She attended the July 29 union
meeting and Kempski told the employees there that the list
would be given to Tummons the next morning. She was not
present for the confrontation with Tummons as she did not
work the morning shift.
Marley Adkins is employed by Respondent as a mainte-
nance technician. He testified that he attended the meeting on
July 29 and signed the list. He further testified that he was
with the group of employees who presented the list to Dr.
Tummons on the next morning.
Linda Gunnells, an employee of the hospital in July 1990,
signed an authorization card on July 22. Her name appears
on General Counsel’s Exhibit 10.
Jeffrey Williamson was a staff RN at the Hospital in 1990,
but had been promoted to a supervisory position by the date
of hearing. He signed a union authorization card dated July
30. His name appears on General Counsel’s Exhibit 10. He
contends that he signed General Counsel’s Exhibit 10 after
he signed the authorization card, and he further contends that
the list was presented to Tummons some weeks after July 30.
1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Price is alleged to be a statutory agent of Respondent as certain
security guards employed by the Hospital. Respondent has denied
this status. The Board has held labor relationsconsultants to be
agents of an employer when those consultants engage in unfair labor
practices on behalf ofan employer. In the instant case, it is
uncontroverted thatRespondent hired SESCO to conduct its em-
ployee opinion survey, and that SESCO advised Respondent on its
campaignto defeat the Union. Under such circumstances, Price,
anemployee from SESCO, is clearly an agent of Respondent. Gour-
met Foods, 270 NLRB 578 (1984); M. K. Morse Co., 302 NLRB
924 (1991); Blankenship & Associates, 306 NLRB 994 (1992). Like-
wise, the Board has held that when securityguards are employed by
a respondent and in the course of their duties violate the Act, those
guards are agents of the employer. Southern Maryland Hospital
Corp., 293 NLRB 1209 (1989).
In all other respects, however, his testimony corroborates the
testimony of the other employees about the meeting with
Tummons. He also testified that the Union faxed either a
copy of General Counsel’s Exhibit 10 or a later version of
it to Tummons. Williamson admitted that he had a clear
memory of events in 1990, but not specific dates.
Respondent introduced as Respondent’s Exhibit 52 a copy
of what purports to be General Counsel’s Exhibit 10, but
with a fax notation across the top indicating the fax date to
be August 12, a Sunday.
There is a question raised by the evidence about when Re-
spondent became aware of the organizing effort of the
Union. I believe that the best evidence would indicate that
it was at the end of July rather than the middle of August.
First, four of the five nurses testifying about the date of de-
livery of the list of employee organizers put it at July 30,
and the one who put it later was admittedly fuzzy about
dates. The nurses testifying as to the July 30 date were also
apparently credible witnesses. Moreover, Hawkins credibly
testified that her supervisor indicated knowledge of the
Union effort even before the list was presented to Tummons.
Interestingly, as noted earlier, Mayor May testified that he
reported to Tummons the existence of the union organizers
sometime in the summer of 1990, putting the time some-
where in August or September. He did not indicate, however,
that Tummons was aware of the effort at the time he in-
formed him of the presence of organizers, so it had to be at
a date preceding the delivery of the list of organizers.
It was shown that the last employee opinion survey com-
missioned by Respondent was taken in 1982. Because of the
timing of the bringing in of the consultants, and the fact that
such surveys were rare in the Hospital’s experience, I find
that the survey was in response to the organizing campaign.
Personnel Director Juanita Deskins testified that SESCO was
used during the campaign to oppose it, though she did not
indicate knowledge that SESCO was initially hired for that
reason. SESCO sent several employees to the Hospital, be-
ginning August 5. These employees conducted an indepth
survey of employee attitudes on virtually every aspect of
their employment. Employees were interviewed on a one-on-
one basis. Nurse Hawkins asked Lloyd Price, the SESCO of-
ficial who was giving her the survey, why the employees
were filing out the survey. He responded that it was to see
what the problems were so they might work on them. She
asked if there had not been a previous survey, and he an-
swered that there had been one about 8 years before. He
commented that nothing had ever come from that survey, but
that Dr. Tummons was going to do something about the sur-
vey the employees were now taking. Price told nurses’ aide
Barbara Coleman that the survey was confidential and that
its purpose was to better the working conditions and to find
out what the problems were.
SESCO provided Respondent with the results of the sur-
vey on August 16. The cover letter, in part, indicates that the
‘‘Open Comments’’ section of the report ‘‘provides much
valuable information by providing a candid insight of the
causes of possible dissatisfaction, complaints, and poor mo-
rale.’’ It also indicates that the survey should provide ‘‘a
‘springboard for action’ that will lead to the improvement in
employee attitudes, working relationships, morale, and an
overall assessment/refinement to the worklife environment of
your organization. Through our follow-up recommendations
which will follow, and your communications with your em-
ployees, many problem areas revealed in the survey can be
pinpointed and corrected in very short order. We will look
forward to helping you to identify these points of vulner-
ability and suggesting suitable solutions in our follow-up
conferences.’’
As I have found that the survey was commissioned and
taken after Respondent learned of the organizing campaign,
that Respondent did not have a regular practice of taking
such surveys, and as one of its agents, Lloyd Price,4 in-
formed employees that the purpose of the survey was to find
areas of employee discontent and solve the problem, I find
that it violates Section 8(a)(1) of the Act. Weather Shield of
Connecticut, 300 NLRB 93 (1990); Columbus Mills, 303
NLRB 223 (1991); Matheson Fast Freight, 297 NLRB 63
(1989); House of Raeford Farms, 308 NLRB 568 (1992). I
can find no compelling evidence that Tummons violated the
Act independently by soliciting grievances and promising to
remedy them as alleged in the complaint. There is evidence
that prior to the organizing campaign, he had held meetings
with employees and invited them to bring their problems and
concerns to them. This, of course, is not unlawful.
B. Did Respondent Unlawfully Change Wages, Benefits,
and Working Conditions of Its Employees in Response
to the Union Organizing Campaign?
This discussion will involve complaint paragraphs 6(a),
(b), (d), (f), and (g). After the results of the survey were pre-
sented to Tummons, he conveyed the results to assistant ad-
ministrators of the Hospital, noting that the survey uncovered
a degree of unhappiness on the part of the employees. The
assistant administrators were to study the portion of the sur-
vey relating to their departments to see how their depart-
ments fared. Thereafter, SESCO personnel met with manage-
ment explaining the do’s and don’ts for management during
the union campaign, advising them what they could say to
employees about the Union. SESCO personnel were at the
hospital for several months during the campaign. They as-
sisted Tummons in preparing and issuing a number of letters
or memos to employees opposing the union organizing effort.
Typical of such memos is the following that was issued to
employees by Tummons:
As Anne Kempski and her Steelworkers Union sup-
porters intensify their efforts to get you to sign one of
their membership cards and turn you into dues payers,
rumors, distortions and out and out misrepresentations
1123METHODIST HOSPITAL OF KENTUCKY
are flying fast and furious. Here are just a few of the
misrepresentations I have heard recently.
Misrepresentation #1
The Union will pay everybody’s bills while they are
on strike even if you don’t pay union dues.
My comment
I would be more than a little suspicious of this or
any other union promise unless it was put in writing
and guaranteed by a responsible Steelworker Union of-
ficial.
Misrepresentation #2
There will be a no strike clause in the union con-
tracts so nobody will ever have to go out on strike.
My comment
This is a particularly interesting comment coming
from the same union that also promises to pay all of
your bills while you are on strike. When people don’t
tell the truth, it gets harder and harder to keep what
they say straight and consistent. But beyond the obvi-
ous inconsistency here, no strike clauses can be nego-
tiated into a contract, but they are only valid during the
life of the contract. The problem is that the vast major-
ity of strikes take place when contract negotiations have
broken down or for recognition, not during the life of
a contract and a no strike clause would be of no value
in those circumstances.
Misrepresentation #3
The Steelworkers will ‘‘give’’ you the same insur-
ance the miners have.
My comment
First of all, the steelworkers don’t and can’t ‘‘give’’
you anything. The Steelworkers do not provide pay-
checks or benefits or anything else. The hospital does.
All the Steelworkers can do is ask. The hospital has al-
ways provided quality insurance coverage and there is
not reason to believe that our insurance will not be im-
proved in the future just as it has in the past, without
the Steelworkers Union. This union promise is as
worthless as any union promise that is not put in writ-
ing and guaranteed by a responsible union official.
Misrepresentation #4
The October wage and benefit package is out the
window. You have to sign a membership card and vote
for the union in order to get anything.
My comment
This is simply not true and I am amazed that anyone
would make such a statement. The Board will proceed
to act on the proposed budget which includes pay and
benefit recommendations.
Misrepresentation #5
You should sign a membership card and not discuss
the signing of this card or any problems you may have
with anyone other than the Steelworkers union and its
supporters.
My comment
A person would have to be an excellent salesman to
get me to sign a legally binding contract without shop-
ping around and discussing it with someone knowledge-
able on both sides of such an important issue. Also,
when you sign a legally binding contract, they don’t
even give you a copy. The union is anxious to get your
signature on legally binding documents, but they sign
nothing and risk nothing. You Do!
Misrepresentation #6
The NLRB’s regulations on ‘‘appropriate health care
industry bargaining units’’ will not apply here. We will
have one big union here for everybody.
My comment
Ms. Kempski is trying her best to confuse this issue.
The only thing I have seen her offer as ‘‘evidence’’ of
her position is a photocopy of a newsletter page from
the Bureau of National Affairs (BNA) which is not a
government agency, but a private for profit company
that has absolutely no authority to speak for the NLRB
or the courts.
Even Ms. Kempski’s own ‘‘evidence’’ is far from
conclusive. In the second paragraph it says that the
NLRB’s 8 bargaining unit rule will not be implemented
until October (38 days from now). Ms. Kempski also
conveniently overlooks the fact that it is the unions, in-
cluding her own Steelworker’s union that are fighting
for implementation of the NLRB’s 8 bargaining unit
rule. In other words, by arguing for ‘‘one big Union,’’
Ms. Kempski is arguing against the position of her own
union.
Another interesting fact that Ms. Kempski ignores is
the fact that RN’s and other professionals have never
been allowed to be in any bargaining unit that includes
non-professionals unless they (the RN’s and/or other
professions) first have the opportunity to vote in a se-
cret ballot election whether or not to be included in a
non-professional unit. The current NLRB regulations
just reinforce this pre-existing, long standing NLRB
rule.
What I know to be true about appropriate bargaining
units in health care is that in April 1989, the NLRB
published its current 8 bargaining unit rules. The Amer-
ican Hospital Association appealed the NLRB 8 unit
rules and in April 1990, the Seventh Circuit Court of
Appeals denied the appeal. The AHA has appealed this
ruling to the U.S. Supreme Court but it is not known
whether or not the Supreme Court will even hear the
appeal, let alone overturn it. Labor unions (including
the Steelworkers) will be supporting the 8 bargaining
unit NLRB rules as they did before the Seventh Circuit
Court of Appeals, not the one big unit that Anne
Kempski is promising.
Misrepresentation #7
If you feel you were lied to otherwise misrepresented
when you signed a Steelworker Union Membership
Card, Ms. Kempski will be glad to return it to you.
My comment
I have been told that the first few people who got
the real facts asked for their cards back were given
them, but as soon as Ms. Kempski saw that the number
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of people asking for their cards back was growing, she
changed her story. It appears that Ms. Kempski is no
longer returning cards upon request. The Steelworkers
are starting to play hardball. No more Mr. Nice Guy!
I will continue to give you as many facts as I can.
I hope you will look carefully at both sides of this most
important issue.
After the survey was taken, in addition to writing such let-
ters to its employees, Respondent announced certain changes
in wages and other benefits in August and implemented them
in October. In October, the Hospital put in a different wage
system and different fringe benefit plans. With respect to
wages, it went from a grade and step structure to a base rate
system. It added a dental plan to the benefits package, with
the Hospital paying a part of the premium for hourly em-
ployees. It also instituted a long-term disability plan, again
with a portion of the premium being paid by the Hospital for
hourly employees. Additionally, it instituted a tax shelter an-
nuity plan, as a supplement to the Hospital’s pension plan.
Deskins testified that plans had been in the works for
some time to institute these changes and that Tummons had
given his approval to the changes around July 30 or the first
of August. Employees were notified of the changes at a
meeting held by Tummons in late August. Prior to this time,
employees were notified of wage increases by their depart-
ment heads and/or by memo. Hospital employees had histori-
cally been given cost of living wage increases, usually in Oc-
tober.
The evidence indicates that on September 18, Respondent
initiated a new policy whereby all employees would be noti-
fied of job vacancies. Respondent announced a policy to post
all vacancies on the employee bulletin boards and in the per-
sonnel department. Alpha Carroll, who had first started work-
ing for Respondent in 1971, testified that from the time she
started until the union campaign, the only place she ever saw
job postings was in the personnel office. Rapunzel Hall testi-
fied that, ‘‘The whole time I worked there, I never saw a
(job posting) until 1990, after the union came in.’’ After the
union campaign began, Hall recalled that a hospital courier
would bring around the job vacancy notices. Barbara Cole-
man had reason to be on the lookout for such postings be-
cause she was seeking transfer to another shift, but she never
did see notices for job vacancies.
On October 7, 1990, Respondent also changed its policy
on holiday bonus payments. This new policy gave the em-
ployees who worked the six national holidays a 50-percent
bonus of their base wage rates. Another change in the em-
ployees’ working conditions was Respondent’s decision to
alter the method of payment of goods and services purchased
from Respondent by the employees. For years prior to the or-
ganizing campaign, Respondent had permitted its employees
to purchase small items such as prescription drugs, uniforms.
In those years, the normal method for the payment of such
purchases was the execution of an authorization to take the
cost of the good out of the employee’s paycheck. But, in Oc-
tober 1990, Respondent changed this policy so as to require
that the employees would have to pay for the goods that cost
$15 and under, and anything over $15 could still be deducted
from the employees paycheck. It should be noted at this
point, when considering all the changes the Respondent’s ad-
ministrator made, after the start of the union campaign, that
none of these changes were sent to the city government for
its review and/or approval. Deskins testified that all these
changes were made solely by the administrator. Moreover,
none of the many antiunion memos distributed to the em-
ployees during the period the Respondent allegedly commit-
ted the unfair labor practices here under discussion noted the
Hospital’s position that it was not subject to the Board’s ju-
risdiction.
Respondent contends that the changes in working condi-
tions first announced to employees in August 1990 could not
be unlawful because they had been planned or decided on
before the Hospital gained knowledge of the organizing cam-
paign. In this regard it offered evidence that in April 1990,
Tummons directed Deskins to revise the salary scale at the
Hospital to a new base rate system of compensation. Accord-
ing to Deskins, Tummons outlined by hand the compensation
system he wished to have in place for the succeeding fiscal
year. Prior to that, Deskins had completed a phone survey of
wage rates elsewhere. Deskins worked on the base rate
project for several weeks, concluding her efforts in June
1990, before she went on vacation July 9. Deskins at another
point in her testimony indicated that Tummons approved the
new wage system around the first of August.
Respondent also points out that though the new pay rates
for RN’s amounts to about a 10-percent increase (to solve re-
cruitment problems), increases for other employees is rel-
atively marginal. The change in the on-call pay alleged to be
unlawful occurred on July 10, a date in advance of Respond-
ent’s knowledge of union activity, and cannot be said to be
an action taken in response to that activity.
With respect to the other changes in benefits, Respondent
introduced evidence that quotes for a dental plan, disability
insurance, and a tax annuity savings plan had been solicited
from vendors and received in June and July 1990. Deskins
testified that the decision to implement such benefits oc-
curred in June, though there is no written document to sup-
port this. The correspondence from vendors does not make
it clear that a vendor for the benefits programs had been
firmly selected by mid-July. Respondent’s Exhibit 29, dated
in April, indicates that Tummons directed his then-personnel
director to pursue additional employee benefits, including
those granted in October, and to change the pay scale. The
memo certainly supports Deskins’ contentions that change in
pay system and benefits were initiated and planned well be-
fore the union campaign began. As such plans were made
before any knowledge of the campaign, and as they appear
from the testimony and documentation to be decided on be-
fore that date, I find that their announcement and implemen-
tation after Respondent gained knowledge of the campaign
does not violate the Act. Weather Shield of Connecticut, 300
NLRB 93 (1990); American Sunroof Corp., 248 NLRB 748
(1980). It may be contended that the method of announcing
the changes, that is, in employee meetings, rather than by
memorandum as was the past practice, might violate the Act.
The evidence reflects that Tummons, however, since his
coming to the Hospital had held employee meetings to make
announcements and thus, the practice of holding employee
meeting for announcements predated Respondent’s knowl-
edge of union organizing activity.
I likewise agree with Respondent that the other changes in
working conditions and benefits alleged in the complaint to
have been unlawfully made are not unlawful under all the
1125METHODIST HOSPITAL OF KENTUCKY
circumstances. The record in this case establishes that the
Hospital has always had a written job-posting policy, the de-
tails of which have been amended periodically to accommo-
date changes in the spatial layout of its operations. Thus, the
Hospital’s revised policy on transfers, dated October 12,
1977, provided that, ‘‘The Personnel Department will post
notices of vacant positions for dissemination to employees.’’
At the time this policy was in effect, the Hospital’s personnel
office was located within the hospital facility itself. It was
in early 1990, prior to organizing activity, that the Personnel
Department moved to an offsite location on Chloe Road.
On June 27, 1990, the transfer policy, now termed
‘‘Change of Classification,’’ was amended to state that ‘‘Va-
cant positions for which employees will be considered will
be posted on the employee bulletin board beside the Cafe-
teria and in the Personnel Office,’’ ‘‘for a minimum of three
(3) days unless determined otherwise by the Personnel Of-
fice.’’ There has been no tangible change in the Hospital’s
posting procedure. Superficial adjustment of the standard
time for a posting, ‘‘unless determined otherwise,’’ and iden-
tification of an additional location for posting placement ne-
cessitated by relocation of the personnel office, hardly affect
terms and conditions of employment to any degree whatso-
ever, much less to a level that could be characterized as in-
terference, restraint, or coercion of employees in the exercise
of Section 7 rights.
Although certain witnesses called by the General Counsel
claimed to have never seen a job posted at the Hospital
‘‘prior to the organizing campaign,’’ at least one of his wit-
nesses testified that she saw job postings on the personnel of-
fice bulletin board prior to its relocation, a fact confirmed by
the introduction in evidence of several postings in evidence
for the year 1989. These postings confirm that the 3-day
durational requirement for postings, ‘‘unless determined oth-
erwise’’ is consistent with the Hospital’s prior treatment of
this issue. Thus, an August 29, 1989 posting required action
no later than September 1, 3 days hence. A July 11, 1989
posting for emergency room supervisor required action with-
in 7 days. A May 1, 1989 posting for histology technician
had a cut-off date of May 5, and a 2-week posting was speci-
fied in a February 24, 1989 posting for a vacant diet techni-
cian job.
As for the Hospital’s vacation policy, there was a change
that occurred during the organizing campaign. The change
was minimal and for reasons that appear to me to be legiti-
mate. The precise change is identified by comparison of sub-
part D of the June 27, 1990, and September 18, 1990 vaca-
tion policy revisions. That change is that while previously
‘‘No less than one day vacation may be taken at any time,’’
following September 18 the minimum was ‘‘No less than
four (4) continuous vacation hours.’’ Rates of accrual and
amounts of vacation entitlement were unchanged by the Sep-
tember 18 policy. Deskins testified about the Hospital’s rea-
son for this change in minimal authorized utilization. Ac-
cording to Deskins: ‘‘Where we had offered more flexible
shifts, during that time . . . to enhance our recruiting abil-
ity—we had also discovered earlier in the year, that when
employees were working twelve hour shifts, they were being
paid twelve hours shifts, on holiday times. And, that is some-
thing—Dr. Tummons said, ‘No, that is not how it should be’
—that a holiday is given in eight hour increments. So, that
was stopped earlier in the year, and then, this was put in
place so that employees could take four hours of vacation,
if they chose to—to make up the difference in the different
hours, in the flexibility of shifts.’’
Here, as a recruitment too, the Hospital had previously of-
fered flexible schedules involving 12-hour shifts, the eco-
nomic consequences of which to incumbents, for holidays
and vacation days, was to lose 4 hours’ earnings under the
8-hour pay limitations contained in the existing policies. To
be able to avoid a reduction in pay for these individuals, the
Hospital authorized, on September 18, a 4-hour incremental
use of accrued vacation, to fully compensate an employee for
a 12-hour day not worked, but compensable as a holiday or
a vacation day.
There is no evidence that the change was in response to
any preelection issue advanced by the Union, nor were the
parties within the sensitive preelection period when in
changes in employment terms are viewed more critically.
The September 18 relaxation of minimal vacation utilization,
without modification of accrual rates or amounts, occurred 6
weeks before the Union filed a petition in the underlying
cases. I can find no causal connection between the union
campaign and the vacation policy change.
There is an allegation in the complaint about a sick leave
policy change in mid September 1990. No evidence was of-
fered in support of this allegation and it will be dismissed.
With respect to the payroll deduction practice, Thelma Vin-
son, the management official in charge of the Hospital’s pay-
roll operation, testified about the change. Prior to the fall of
1990, employees were permitted to ‘‘[c]ome in to the phar-
macy, materials and management, or any place that they
could get a service, or something that they needed—sign a
payroll deduction, state how much they wanted to have taken
out each pay (period), and, then, that little slip of paper
would come over to payroll, and, they would manually input
those deductions, ever how small they (employees) wanted
them to be—to come out of their pay.’’
[P]harmacy . . . medications are expensive. and,
they would be more than what their paycheck is . . .
and they were stretched out over—you know—five, six
seven eight, nine, ten—whatever they wanted—and, try
to get it down to like five dollars, six dollars, seven
dollars. They would take small purchases and try to
stretch it out, too, and, just have fifty cents taken out
of pay, or a dollar, or something. You would go both
directions. You would go from extremes, to small
things, which is still time consuming, because every-
thing had to be manually imputed.
The payroll deduction purchase practice had not, until
1990, ever been reduced to writing and was not uniform.
Different departments within which purchases were made did
different things. In response to the burden of processing
these items, and in conjunction with the implementation of
a new automated system for payroll, a decision was made to
standardize the employee payroll deduction purchase prac-
tice. Thus, in October 1990, a general policy with respect to
employee purchases through payroll deduction was instituted
whereby a floor of 15 percent of the indebtedness, or $15,
whichever was higher was deducted each pay period.
There is no causal connection between employee organiz-
ing activity and the change that is the subject of this allega-
1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Pars. 5(s) of the complaint alleges that on October 26, Supervisor
Ramona Norris created the impression that employees were being
kept under surveillance. The only testimony supporting this allega-
tion that I can find in the record is Thacker’s testimony that after
Ratliff told her that she could not post union literature on the bul-
letin board, she observed Norris check the bulletin board three times
the same day. Assuming this is the evidentiary support for the in-
volved allegation, it is not sufficient to prove a violation of the Act.
I will recommend dismissal of this complaint allegation.
tion. To the contrary, the Hospital’s business interest in
standardizing its unwritten payroll deduction practices to re-
duce clerical time expended performing these tasks, all in
conjunction with the introduction of a new automated payroll
system, seem to me to establish that the campaign was of no
consequence to the action taken. Moreover, this change in
practice would likely be viewed as an adverse change by em-
ployee and not one which would reduce their union support.
For the reasons set forth above, I find that Respondent did
not violate the Act as alleged in complaint paragraphs 6(a),
(b), (d), (f), and (g).
C. Did Respondent Unlawfully Discriminate in the
Enforcement of its Posting and Distribution Rules?
This section discusses complaint paragraphs 5(a)(i), (g),
(n)(ii), (o), (q), and (r)(ii). On June 27, 1990, before the ad-
vent of organizing activity, Respondent amended its existing
solicitation policy to specifically provide:
Any written material to be displayed in the Hospital
must be approved by the Personnel Director or Admin-
istrator. Unless specific permission is obtained, such
display is in violation of Hospital policy.
Prior to June 1990, the Hospital maintained a no-solicita-
tion policy which, but for the above-quoted passage, was vir-
tually identical to the most recent republication. The General
Counsel does not contend that the rule as promulgated is un-
lawful; rather, that discriminatory enforcement of the policy
by the Respondent violated the Act.
A number of employee witnesses testified that Respondent
allowed the posting of personal, charitable, and otherwise
nonwork related material on the Hospital’s bulletin boards
after the promulgation of the revised no-solicitation rule
while enforcing the policy with respect to the posting of
Union related material. The Hospital maintains a number of
bulletin boards, including one in personnel, one beside the
cafeteria, and one in each patient care area. Employee Alpha
Carroll testified that prior to the union campaign, employees
on her floor posted on that floor’s bulletin board wedding an-
nouncements, revival announcements, postcards, and jokes.
She further testified that on August 1, a list of the employee
union organizers was posted. Carroll’s supervisor, Teresa
Newsom, observed the list and removed it. On cross-exam-
ination, it was pointed out that Hospital’s records revealed
that Carroll was not working on August 1. Carroll stated that
she may have been wrong about the date, but not the inci-
dent. Newsom admitted that on or about August 20, she re-
moved a union organizing committee list, simultaneously re-
moving a church revival notice. Newsom further testified that
although she removed the postings, she did so because they
violated hospital policy and that she routinely does so when
she discovers nonhospital business materials, which she has
observed in the form of wedding announcements and baby
showers in the past.
Employee Amanda Hawkins testified that on her floor, at
the outset of the union campaign, there were posted on the
bulletin board wedding invitations, shower invitations, post-
cards from vacationing employees, and newspaper wedding
announcements. She further testified that prior to the cam-
paign, employees were not required to get permission to post
such nonwork related items nor were they told not to post
them. On about September 18 or 19, Hawkins’ supervisor,
Shirley Coleman, told a group of nurses in their lounge that
there was to be no more announcements posted on the bul-
letin board. Though Hawkins was aware of the Hospital’s
longstanding written policy about postings, she testified
credibly that they were not enforced until Coleman’s an-
nouncement in September.
Employee Barbara Coleman testified that she had observed
nonwork related material posted on the Hospital’s bulletin
boards by employees since she started working at the Hos-
pital in 1989. To the best of her knowledge there had never
been a requirement to get permission to post such materials.
Similar testimony was given by employees Rapunzel Hall,
Ruth Thacker, Bruce White, Linda Gunnels, and Jeffrey
Williamson. Employee Lisa Smith testified that she had put
up union literature on the nurses lounge bulletin board. On
August 19, Supervisor Lois Jones came to the sixth floor and
held a meeting with the employees near the nurses station.
Smith recalled that Jones announced to the employees they
could no longer post anything on the bulletin board, and
mentioned union literature specifically. Barbara Colemen was
given a similar message by Smith. Linda Gunnels testified
that Jones gave her the same prohibition about the use of the
bulletin boards. Ruth Thacker, an employee in the medical
records department, testified that she asked her supervisor,
Barbara Ratliff, in the latter part of October if she could post
union literature and was told no by Ratliff.5
Respondent’s employee Marlie Adkins was employed as a
maintenance helper in 1990, and his supervisor was Bob
Ratliff. He testified that on October 16, he was eating lunch
in the Hospital’s paint shop with four other employees when
Ratliff and two other supervisory employees came in the
shop. According to Adkins, Ratliff proceeded to take down
literature that was posted on a cabinet in the shop, stating
that the cabinet was not a bulletin board. He then told the
employees eating lunch that he knew that they were talking
about the Union and if it did not stop, he would padlock the
shop and they could not eat lunch there anymore. The mate-
rial Ratliff removed from the cabinet included both pro- and
antiunion literature, work schedules, and comics. He then
told Adkins that Adkins had lied to him about taking Adkins
name off the list of employee union organizers. Adkins said
he had not lied, and that if he had known it was going to
make Ratliff so mad, he would have not signed the list in
the first place. Ratliff then showed him a list of the organiz-
ers, with Adkins name underlined. He then told Bruce White,
who was another of the employees eating lunch, that it was
his job to keep the union literature off the cabinet.
Bruce White testified that he had posted both union and
hospital literature on the cabinet, as well as nonwork related
material such as basketball schedules and jokes. White cor-
roborated Adkins testimony about Ratliff removing material
from the cabinet and added that Ratliff stated, ‘‘. . . the
1127METHODIST HOSPITAL OF KENTUCKY
6 The complaint does not allege this conversation violated the Act.
Hospital is not paying you guys wages to have union meet-
ings. And I don’t want any more literature like that on the
locker, which is not a bulletin board.’’ White, as a painter,
had occasion to go through the Hospital and testified that
prior to the union campaign, he observed nonwork related
materials on the Hospital’s bulletin boards. He also observed
such materials after the campaign began.
Ratliff admitted removing the material from the cabinet,
but said he did it regularly when it became cluttered. He de-
nied making any statements about the Union, or even carry-
ing with him the employee organizing list. Respondent also
attempted to make any reference to stopping the use of the
paint shop for lunch related to Ratliff’s dissatisfaction with
the mess the employees made. I credit, however, the testi-
mony of Adkins and White. They appeared far more credible
than Ratliff. Therefore, with respect to this incident, I find
that he did threaten the employees with not allowing them
to use the room for lunch if they continued to talk about the
Union. Both White and Adkins testified that Ratliff was
angry in his confrontation with them. In the circumstances,
I find that his actions violated Section 8(a)(1) of the Act as
alleged in complaint paragraph 5(r)(i).
I believe the evidence supports the General Counsel’s po-
sition with respect to the matter discriminatory enforcement
of the posting rules. It appears and I find that notwithstand-
ing the newly promulgated no-solicitation policy, Respondent
allowed the posting by employees of nonwork related mate-
rials on its bulletin boards after the June policy revision.
Only after the onset of the organizing campaign did it begin
enforcing the policy, obviously in an attempt to limit the
posting of union literature. There is also credible evidence
that posting of nonwork related material was allowed after
the campaign started, but not the posting of union literature.
For example, see the testimony of Bruce White. Such action
is discriminatory and violates Section 8(a)(1) of the Act.
Honeywell, Inc., 262 NLRB 1402 (1982).
This section discusses complaint paragraphs 5(a)(i), (g),
(n)(ii), (q), and (r)(i) and (ii).
D. Did Respondent Discriminatorily Give Judy Webb a
Poor Performance Evaluation Because of Her
Union Support?
This section discusses complaint paragraph 6(e). Judy
Webb had attended Respondent’s medical technology school
and on August 6, she became a full-time medical tech-
nologist. While she was attending school, Webb worked in
Respondent’s medical laboratory as a lab assistant. Her su-
pervisor in the lab was Don Williamson, the chief medical
technologist. Webb testified that in the latter part of July, she
went to Williamson’s office with a question. While in his of-
fice, Williamson asked her, ‘‘How do you feel about the
unions?’’ Webb replied that she had been a part-time em-
ployee at a firm whose employees were represented by the
Teamsters union, that her father and grandfather had been
members of the U.M.W.A., that a brother was currently a
U.M.W.A. member, and ‘‘We were just raised a union fam-
ily, and yes, I was in support of any union.’’6
In August, Webb signed a union authorization card. Webb
testified that she wore a ‘‘vote yes’’ union button inside the
lab on one occasion, the day before she received her per-
formance evaluation on September 9. Mary Jo Blackburn, as-
sistant lab chief (who reports directly to Williamson) ordered
Webb to remove the union button that she was wearing in
the lab. Blackburn’s handwritten memorandum that describes
this incident in detail was contained in Webb’s personnel
file. Blackburn’s memorandum, which is dated September
10, discloses that this incident occurred on September 8.
Blackburn wrote that Dr. Tummons wanted her to report to
the lab to instruct Webb to remove the prounion button from
her lab coat. Blackburn’s memorandum describes that she
went to the lab and told Webb that she was not allowed to
wear any pins other than registry or school pens. Blackburn
reported this to Dr. Tummons and also Juanita Deskins.
On September 9, Deskins and Williamson presented Webb
with her evaluation. At the time, Webb was the only lab em-
ployee who had worn any prounion buttons, and hers was the
only lab employee’s name that appeared on the list of em-
ployee union organizers. Webb’s evaluation on September 9
was at or near the bottom of the ratings in all categories. The
standard evaluation form rates the employee in seven cat-
egories and each of the categories has a numerical 1 through
20 rating, with l being the lowest rating. Ratings of 1
through 3 are ranked as unsatisfactory, a rating of 4 through
7 is below average. Webb received a l in three categories,
a 2 in one category, a 3 in one category, and a 4 in three
other categories, which placed her in the lowest, below aver-
age classification. Deskins put Webb on a 2-month ‘‘ex-
tended trial period’’ with a notation that she would be re-
evaluated in 30 days.
In Webb’s two previous evaluations, prepared by
Williamson on May 31 and June 27, he rated Webb ‘‘aver-
age’’ in all seven categories. Webb’s next evaluation after
the one on September 9, which was prepared by Williamson
on November 7, rated Webb in the ‘‘average’’ ranking in all
seven categories. She has received only positive evaluations
since that time. Respondent’s records demonstrate that
Williamson’s evaluation of Webb on September 9 is the
worst evaluation he prepared for any lab employee for the
2-year period from January 1989 through December 1990.
Out of the 63 evaluations of current employees prepared by
Williamson in that 2-year period, none of them come close
to Webb’s negative September 9 evaluation. An examination
of those evaluations reveals that only one of these employees
(Tracey Smiley) ranked either ‘‘below average’’ or ‘‘unsatis-
factory’’ in any of the seven categories and she scored a
‘‘below average’’ in just one category. Out of the 32 evalua-
tions prepared by Williamson of terminated employees dur-
ing the same period of time, none of those lab employees re-
ceived an ‘‘unsatisfactory’’ ranking in any of the seven cat-
egories, and only four employees received any ‘‘below aver-
age’’ rankings, with one of them (Lon Gibson) receiving four
such rankings, and three employees (Shirley Compton, Lloyd
Justice, and Cristine Taylor) getting just one such ranking a
piece.
Williamson’s handwritten comments on the back of
Webb’s September 9 evaluation is a vague reference to
Webb’s recent activities 1 day earlier. In his comments
Williamson admonishes Webb to ‘‘stop creating antagonism
in the laboratory and with any other hospital personnel.’’
Webb testified that Williamson explained that she had been
antagonistic toward fellow employee Angel Little. Webb re-
membered calling Little at her home and talking in favor of
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Coworker Mitzi Thacker remembers Gray saying that she wanted
her card back. This does not square with Gray’s uncontradicted testi-
mony of Bowling’s subsequent threat that continued union support
could lead to trouble.
8 I find this uncontradicted threat by Bowling to be coercive in the
extreme as it threatens, prophetically, Gray’s continued employment.
Accordingly, I find that Respondent has violated Sec. 8(a)(1) and (3)
by Bowling’s threat as alleged in complaint par. 5(t). Pony Express
Courier Corp., 283 NLRB 868 (1987); Quemetco Inc., 223 NLRB
470 (1976).
the Union. Williamson also wrote that Webb ‘‘has been very
critical of these policies,’’ referring to hospital and laboratory
policies and that she should ‘‘be a team player.’’ In addition,
Webb remembers that Williamson explained to her three
‘‘poor’’ job performances by Webb. Neither Williamson nor
any other supervisors had ever voiced any criticism to Webb
about any of these incidents until the September 9 evaluation
meeting.
Williamson did not testify in this proceeding. Respond-
ent’s primary defense against the allegation of discrimination
against Webb in the evaluation given her on September 9 is
that the evaluation was prepared on September 7, the day be-
fore she wore her union button. Not only can I not be certain
that that was the date the evaluation was prepared as
Williamson did not testify, but it is clear from Webb’s
uncontradicted testimony that Williamson was aware of
Webb’s union sympathies far before she wore the button.
Based on Williamson’s knowledge of her union support, the
lack of criticism of her work at the time her alleged poor
performance occurred, the drastically worse evaluation given
her after her union support became known as compared with
earlier evaluations, and the seriousness with which Respond-
ent treated the wearing of the union button, I find that Re-
spondent gave Webb the poor evaluation in order to discrimi-
nate against her for her union support, in violation Section
8(a)(1) and (3).
E. Did Respondent Unlawfully Interrogate, Threaten,
Suspend and Discharge Robin Gray Because of
Her Union Support?
This section discusses the allegations contained in com-
plaint paragraph 6(i). It also discusses complaint paragraphs
5(a)(i), (ii), and (iii), and 5(t), as the allegations in those
paragraphs relate to Robin Gray. Robin Gray was employed
as a ward clerk in the neo-natal intensive care unit from
when she was hired in October 1989 until her suspension on
November 8 and discharge on November 14. On August 4,
Gray signed a union authorization card.
Her immediate supervisors were Brenda Chapman and
Phyllis Bowling. They in turn reported to Cheryl Hickman.
About a week after she signed the authorization card, she
had a conversation with Hickman in the presence of other
employees in the unit. Hickman asked if any of the employ-
ees had signed authorization cards and two other employees
said they had not. Gray volunteered that she had signed a
card. Another employee also acknowledged that she had
signed a card, but wanted it back. Hickman advised this em-
ployee to send a certified letter to Union Organizer
Kempski.7 Hickman told the employees that the Union was
trouble and only wanted in the Hospital to collect the dues
the employees would pay. She also indicated that if employ-
ees signed cards, it was trouble.
The next day, Hickman asked Gray if she had gotten her
card back and Gray said no. Gray indicated Hickman asked
her this question a number of times over the next 2 days.
About the end of August, Hickman had a meeting in the
unit with Phyllis Bowling, Kay Thornberry, and Gray. She
told them not to discuss anything concerning the Union any-
more because it was disruptive with the other employees.
After the meeting, she called Gray aside and told her specifi-
cally not to discuss the Union with coworkers as it was dis-
ruptive. Gray asked if this admonition was related to an ar-
gument she had with coworker Nicki White. A day or so ear-
lier, she had had a conversation with White wherein White
had expressed her antiunion feelings and Gray her prounion
sentiments. Hickman again told her not to discuss the Union.
As alleged in the complaint, I find the repeated questioning
of Gray about her union authorization card, coupled with the
admonition that signing such a card could be trouble is clear-
ly coercive and has the clear intent of restraining employees
in the exercise of Section 7 rights. Accordingly, I find that
Hickman’s interrogation of Gray and her fellow employees
to be in violation of Section 8(a)(1) of the Act, as alleged
in complaint paragraphs (5)(e)(i), (ii), and (iii). As I note
below in connection with the entire matter of Gray’s dis-
charge, I credit her testimony over that of witnesses pre-
sented by Respondent, and do not credit more innocuous ver-
sions of Gray’s interrogation or Hickman’s other antiunion
statements found in this record. Gray was a very credible
witness and her testimony is fully supported by the actions
taken by Respondent against her. I also find that Hickman’s
prohibition against Gray discussing the Union to be violative
of the Act, when no other topics of discussion among em-
ployees were restricted. The prohibition is even more coer-
cive when one considers the fact that Gray’s ‘‘disruptive’’
union support surfaces shortly thereafter as a negative factor
in her annual evaluation.
On October 26, Gray was given an evaluation that reflects
satisfactory performance. It comments, however, that ‘‘im-
provement must be shown with her interpersonal relation-
ships with co-workers, especially due to NICU being a small
unit where everyone has to work so closely.’’ This was
signed by Hickman. Gray commented on the form, ‘‘I feel
that all the blame was not shared equally. I also feel that I
did get along well with my co-workers.’’ The evaluation was
given to Gray by Bowling. After showing her the evaluation,
Bowling took it to Hickman. Later Bowling returned to Gray
with the evaluation, stating that Hickman had said the eval-
uation could not go through with Gray’s opinion on it. Bowl-
ing added that ‘‘as a friend from now on I had better be anti-
union because my job could be replaced by someone from
the street.’’8
Gray’s last day of employment at the Hospital was No-
vember 8. On the day before, she had lunch in the Hospital
cafeteria with Brenda Chapman. Her lunchbreak was for 30
minutes, which is unpaid. She testified that she went to lunch
on November 7 about 12:55 p.m., and spent about 15 min-
utes in the cafeteria. She had called a local store earlier in
the day to ascertain if some photos of hers’ that they were
processing were ready, and had been advised that they were
in. When she left the cafeteria, she returned to her unit and
asked Mitzi Thacker, a part-time RN in the unit if it would
be okay to go to the store and get the photos. Thacker said
1129METHODIST HOSPITAL OF KENTUCKY
9 Thacker, a supervisor, remembered both Hickman, on November
5, and Chapman, on November 7, telling Gray to clock out and back
in. Another RN in the unit, Gwen Durkey, also testified that she
heard Gray receive permission to leave on both occasions, and re-
members Hickman telling Gray to clock out on November 5, but not
Chapman saying that on November 7.
it would be okay. She also mentioned that she was going to
the store to shift coordinator, Brenda Chapman, who had no
objection. According to Gray, Chapman said nothing about
clocking out. According to Chapman, she said that Gray
could go, ‘‘as long as she clocked out and back in.’’9 Gray
placed the time at this point at about 1:15 p.m. She then left
the Hospital without clocking out, went to the store, got her
pictures, and returned to the Hospital. She did not clock in
on her return. Her estimate of the time she was gone was
approximately 25 minutes. Chapman estimated that it was
about 45 minutes.
Upon her return to her unit, Gray was informed by
Thacker that Gray was wanted to work the desk on the fifth
floor. Brenda Chapman was also present and gave her a
friendly goodbye as Gray left the unit. She went to the fifth
floor and worked there the rest of the day. No one said any-
thing to her about her trip to the store or her failure to clock
out and back in that day. Thacker testified that while Gray
was gone to the store, she became curious about how long
she had been gone as the fifth floor had made two requests
for Gray to come to work there. She testified that she went
to where Gray’s timecard was kept and discovered that she
did not clock out. Thacker, without saying why, told Hick-
man she should check Gray’s card. Hickman testified that
she attempted to do so about 3:30 that day, but that the card
was mysteriously missing. Chapman testified that she saw
Gray leaving work that day and asked Gray if she had
clocked out and back in that day, because Hickman ‘‘told me
to made sure I reminded her.’’ According to Hickman, Gray
replied that she had forgotten to clock in and Chapman told
her she could ‘‘write it in, date it . . . and sign it.’’
Hickman testified that she returned to the unit that evening
and discovered Gray’s card still missing. The next day she
found the card back in its slot, but the card did not reflect
Gray’s trips on November 5 and 7. Hickman testified that
she took the card to Carter, as she had already spoken to
Carter the previous day about the card’s disappearance.
On November 8, Gray reported to work at 7 a.m., and was
assigned to the desk on the fifth floor, working there until
2:30 p.m. At that time she was instructed to report to the
Hospital office. She went there and met with Hickman, and
the Hospital’s assistant administrator, Dorothy Carter. Hick-
man said there was a problem with Gray’s timecard, that
Brenda Chapman had told her to clock out for her trip to the
store the day before, and that she had committed a Federal
offense by falsifying her timecard.
Gray responded that she did not hear Chapman tell her to
clock out and offered to correct her timecard. Carter said it
was too late and Gray would be sent home without pay while
the matter was investigated. According to Gray, Hickman
noted that Gray had permission from Chapman to go to the
store, but was guilty of not clocking out and in.
On November 13, Hickman called Gray and told her to re-
port to Carter the next day. On November 14, Gray met with
Carter, Hickman, and Deskins. Deskins said they had inves-
tigated Gray’s timecard and the Hospital was going to dis-
miss her for insubordination. Gray said other employees were
doing what she had done all the time without being dis-
ciplined. Deskins responded that anyone caught doing the
same thing would be terminated. Gray had never before been
disciplined for anything. According to Gray, the first time
she was told that she should clock out for leaving the Hos-
pital to run an errand was at her suspension on November
8.
She had left the Hospital on November 5 to sign a mort-
gage note and was gone for 15 minutes. On that occasion,
she asked permission from Hickman and received it. Accord-
ing to Gray, Hickman said nothing about clocking out. Hick-
man testified that she reminded Gray to clock out, but did
not check her timecard upon Gray’s return to see if she had
done so. Gray also recounted an incident on September 19,
when she and Bowling went to the bank to cash payroll
checks. She was gone for about 20 minutes that time. Noth-
ing was said to her on this occasion about clocking out. She
remembered other occasions when she ran errands for the
unit without clocking out, with the knowledge of unit person-
nel. She noted that employee Nicki White had left the hos-
pital in May to get a dress for her daughter, with Brenda
Chapman’s permission. Gray overheard White ask if she had
to clock out and Chapman told her no.
On those occasions when Gray has forgotten to clock in
when reporting to work or clock out when leaving, she had
corrected her timecard later. She had never been told that
failure to clock in or out for short errands could result in dis-
cipline, including termination.
Respondent terminated Gray for ‘‘Violation of Hospital
Policy—Category I Offense.’’ For some time the Hospital
has had a written policy requiring, inter alia, that ‘‘If it is
necessary for an employee to leave the Hospital before com-
pletion of the shift, he/she will check out upon departure.’’
The Hospital’s most recent policy, dated June 27, 1990,
states, additionally, that ‘‘falsification of time and attendance
records are serious violations of Hospital Policy’’ for which
‘‘Offenders will be subject to severe disciplinary action and
possible prosecution.’’ Since at least 1981, the Hospital has
likewise, maintained a written disciplinary action policy
which prohibits, under penalty of discharge, ‘‘Willful insub-
ordination’’ and ‘‘Falsification of any reports, records, or in-
formation.’’
To the extent that there are credibility differences between
Gray and the other witnesses testifying about the cir-
cumstances of her discharge, I credit Gray. The General
Counsel had proven that there existed animus toward Gray
because of her union support, and the actions of Hickman,
Chapman, Thacker, and Carter with respect to the events in
question appear to me to be an attempt to find a way to get
rid of Gray. Having observed Gray, I find it unbelievable
that she would not have clocked out and in on the dates in
question if she were told to do so. This is especially true if
one believes Brenda Chapman’s testimony that she told her
to correct her card as Gray was leaving work on November
7.
It is not as if Gray were getting away with something.
Hickman and Chapman had given their permission for Gray
to leave the Hospital to run errands on November 5 and 7.
Neither the matter of her being away from work or the dura-
tion of her absence was of concern to them. The total
amount of money the hospital was out, if Gray got away
1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with not clocking in or out, was less than $10. Yet for this
minor amount of money, Gray was not confronted by Hick-
man on November 7 or 8 and warned of the potential con-
sequences of not clocking out and in, or told to correct the
card; instead, Hickman went on November 7 and 8 to the
Hospital’s assistant administrator, who waited until the end
of Gray’s shift and then effectively terminated her. The Re-
spondent officially suspended her pending investigation, but
what was there to investigate? Hickman knew on November
7 that Gray had not clocked out and in on November 5 and
again on November 7. She had already spoken to Chapman
about it on November 7. If Hickman instructed Chapman to
be sure to tell Gray to correct her card on November 7, why
would she not be willing to let Gray make the correction on
November 8. Gray was an employee without prior discipline
on her record and had just received a satisfactory rating on
her work duties. I do not believe that Gray was told to clock
in or out on the dates in question and do not believe that
she was given the opportunity to correct her card as indicated
by Chapman.
I believe and find that Gray was discharged because of
Respondent’s union animus and for no other reason. No
other hospital employee had been discharged for a similar of-
fense in over 15 years, though there is ample credible evi-
dence that it was common for employees to leave the Hos-
pital for short periods during the workday without clocking
in or out. Hickman and Chapman admitted that they never
warned Gray of the possible consequences for failing to
clock in or out. Gray credibly testified about other instances
in which she and other employees were allowed to leave the
premises for errands and not clock in or out. Her testimony
is buttressed by the fact that her timecards throughout her en-
tire employment disclose only one occasion, in her first week
of employment in October 1989, when she clocked in and
out during working hours. On that occasion, Gray’s timecard
was corrected to indicate that she should be paid for her 28
minutes absence. As I noted above, I find the true motivation
for discharging Gray was for her union support and the rea-
sons given by Respondent are purely pretextual. Given the
Hospital’s demonstrated lax treatment of employees not
clocking in and out to run short errands, and the matter of
being gone from work is not of concern, and the failure of
the Hospital to discipline any other employee for similar ac-
tion, I do not believe the Hospital has demonstrated that it
has any legitimate business reason for its actions, and cer-
tainly has not demonstrated that it would have taken the
same action absent Gray’s union activity. Accordingly, I find
that Respondent has violated Section 8(a)(1) and (3) of the
Act. See Wright Line, 251 NLRB 1083 (1980).
F. Did Respondent Discriminatorily Issue Rapunzel
Halla Written Warning and Change Her Job Duties
Because of Her Activities in Support of the Union?
This section discusses complaint paragraph 6(h). Rapunzel
Hall went to work for Respondent in August 1985 and has
worked there ever since, as a pharmacy technician. Her per-
formance evaluations both before and after the incident in
question show her to be an excellent employee. On August
20, Hall became involved in the Union for the first time by
signing an authorization card. Thereafter, she participated in
handbilling outside the Hospital with other employees. Then,
on November 1, Hall was given a written reprimand and her
job duties, which she testified that she liked very much, were
changed.
The situation that Respondent contends caused the warning
to be given began in the fall of 1990, when the Hospital dis-
covered a major inventory shortage in floor stock medica-
tions and supplies stored in the pharmacy. The shortage was
brought to the attention of Pharmacy Director Pat McCoy in
a meeting with the Hospital’s chief financial officer, Norris,
and controller, Vinson, on October 23. To ascertain the
source of the shortage, McCoy was instructed to retrieve all
of the requisitions, called ‘‘green sheets,’’ from throughout
the past fiscal year, reflecting the request for and dispensa-
tion of floor stock items to the other areas of the Hospital.
Hall, who was solely responsible for the processing and
monthly summarization of all green sheets, explained the
process she goes through in keeping track of floor stock. In
summary, on a monthly basis, she inputs the data from indi-
vidual green sheets, including the item requisitioned, its cost,
and, inter alia, the department that received the item. Some
floor stock items are charged, for accounting purposes, as
pharmacy charges, while others are simply floor-absorbed
charges, referring to patient care areas. This data is entered
into a ‘‘dummy’’ file in the computer, meaning that it is not
accessible or stored anywhere else, whereupon Hall generates
a written printout of totals on a monthly basis. Hall delivers
this printout or report, by hand, to McCoy or her secretary,
Verda Prater. The report is due 4 days after the close of each
month. At the end of the fiscal year, the dummy file is
purged. As clarified by McCoy, Hall’s monthly summaries
are translated by Prater into a handwritten report that McCoy
later signs and is then transmitted to the accounting depart-
ment. McCoy does not compare Hall’s dummy file printout
to the handwritten translation prepared by Prater in the ordi-
nary course of business.
Following her meeting with the Hospital’s financial offi-
cers on October 23, McCoy returned to the pharmacy at 6:30
p.m. and instructed the hourly employees, called technicians,
to begin a recomputation of pharmacy floor stock dispensa-
tions for the entire fiscal year, starting ‘‘from scratch’’ with
the green sheets. McCoy stressed the need to complete the
project as quickly as possible and to utilize all overtime nec-
essary.
Overnight, it occurred to McCoy that perhaps the informa-
tion she had instructed the technicians to regenerate remained
in the dummy file on the computer as generated by Hall. In-
credibly, it did not occur to her that this very same informa-
tion was readily available from the reports that Hall gave to
her on a monthly basis. In any event, according to McCoy,
she asked Hall the next morning if it were possible to re-
trieve the reports from her files and Hall replied that her files
had already been purged. The Hospital’s fiscal year had just
ended. Hall did not mention the printed reports she generates
for initial transmission to McCoy and Prater. If one believes
McCoy, presumably, Hall did not think Hall would ask for
a new printout if she still had the report Hall had given her.
Hall credibly testified, however, that she asked McCoy why
the employes were regenerating information that she had al-
ready given McCoy in the monthly reports. According to
Hall, McCoy asked if she could retrieve the reports from her
computer and she informed McCoy that the information had
been purged in the ordinary course of business.
1131METHODIST HOSPITAL OF KENTUCKY
10 At the time that the events in question occurred in 1990, the al-
leged discriminatee’s name was Phyllis Gibson.
McCoy tells a slightly different version. She testified that
the next day, October 25, she asked Hall what she did with
the information once it was entered into the computer. For
the first time, Hall told McCoy, her immediate supervisor
and the recipient of the monthly reports, about the monthly
reports and informed McCoy that she should have the infor-
mation in her possession. McCoy began a search for the re-
ports and ultimately found them, misfiled in her office. She
described her office thusly, ‘‘It was—my office is more like
a store room, than an office. It is very cluttered . . . It was
in a group of other generated documents, that all from the
inventory—that came from the inventory side, from the data
processing.’’
McCoy, on locating the printouts, informed the technicians
that she could not believe that all the overtime had been ex-
pended trying to reproduce what was already in the reports.
She claims Hall smiled and said, ‘‘Well, it was a waste of
time, wasn’t it.’’ Hall denies this comment, and I credit her
denial. Hall was a very credible witness and observing her,
I simply do not believe that she made the remark attributed
to her or for that matter is capable of making such a sarcastic
remark.
McCoy testified that she concluded that Hall had misled
her by not revealing the existence of the printouts earlier in
the process. In a memo to Deskins, McCoy reported the
events that had occurred and the basis for her belief concern-
ing Hall’s lack of cooperation. In part, she wrote: ‘‘Rapunzel
Hall clearly answered each question with an answer, how-
ever, not the appropriate answer. She answered my questions,
but avoided divulging any information that would assist in
the effort and dilemma we were in. Her ‘non-participatory’
answers delayed our report and cost the hospital in over-time
expenses and many [sic] unproductive work by salaried em-
ployees. She did not answer any question openly, honestly,
or explicitly.’’
On November 1, Hall was given a written reprimand and
the job function of putting the green sheet information on the
computer was given to another employee. According to the
Pharmacy Manager Roy Reeser, Hall stated to him at the
time when the warning was given, ‘‘If I had known what
you wanted, I would have given it to you.’’ The warning,
in my mind, clearly indicates that McCoy believed that
Hall’s union support played a part in the October incidents.
It reads:
As director I must maintain the integrity of the phar-
macy and its position within the hospital structure. I
can not, and will not tolerate behavior that is clearly in-
tended to undermine the integrity of the pharmacy de-
partment and its function within the Hospital. Specifi-
cally, I cannot and will not countenance behavior which
attempts to walk a fine line between the letter and the
spirit of our disciplinary policies and generally accepted
standards of behavior. Through what was clearly dis-
honest and insubordinate omission on your part the hos-
pital was forced to unnecessarily spend up to $1,000 or
more in overtime pay not to mention inconvenience to
many salaried employees.
You clearly chose not to retrieve information which
resulted in both overtime and other costs to the hospital
and a delay in closing the books for the fiscal year end-
ing September 30, 1990.
Allowing you to remain in your present position
would not only jeopardize your career here at the hos-
pital, but would clearly not be in the best interest of the
pharmacy and ultimately the hospital.
Therefore, I’m removing you—effective imme-
diately—from all Inventory Related activities. Your
new assignment will consist of technician duties with
an emphasis on out-patient pharmacy.
Not only do I expect you to follow the letter, but I
also expect you to follow to the spirit of Hospital Poli-
cies and Procedures. I require from you an immediate
and on-going improvement, in your cooperation with
me and other supervisory and non-supervisor hospital
employees and your support of the hospital.
I will not tolerate:
Dishonesty
Insubordination
Refusal to obey reasonable instructions
(All of the above either by omission or commission)
I expect you to fulfill your duties in the same man-
ner as I expect all other pharmacy employees to fulfill
theirs. Additionally, I expect you to cease disruptive be-
havior which has the effect of interfering with the work
performance of other employees.
It is clear from the evidence that Hall did absolutely noth-
ing wrong. The fact that her supervisor, McCoy, did not re-
member that she was in possession of the information that
she ordered employees to work overtime to regenerate cannot
conceivably be Hall’s fault. If fault is to be placed, it is
clearly that of McCoy. I also do not credit any of McCoy’s
attempts to read any sarcasm or willful lack of cooperation
or insubordination into Hall’s interaction with her during this
incident. Hearing McCoy testify, and then reading the warn-
ing notice, it becomes clear that McCoy wanted a reason to
threaten and discipline Hall without regard to the inventory
situation. There is no evidence of any ‘‘disruptive behavior’’
by Hall, or any lack of ‘‘support’’ for the Hospital, except
for her union activities. I believe and find that the warning
given to Hall and her change in job duties was solely be-
cause of her union activities and not for the pretextual rea-
sons given. I find that the warning and job change are ac-
tions in violation of Section 8(a)(1) and (3) of the Act. Thur-
ston Motor Lines, 263 NLRB 1101 (1982); Gulf Envelope
Co., 256 NLRB 320 (1981); and Luk, Inc., 255 NLRB 976
(1981).
G. Did Respondent Constructively Discharge Phyllis
(Gibson) Campbell Because of Her Union
Support and Activities?
This section discussing complaint paragraph 6(c) that al-
leges that on or about August 13, 1990, the Hospital con-
structively discharged Phyllis Campbell.10 Campbell first
came to work for the Hospital as a nursing assistant in 1968,
a position she still held in 1990. She had been one of the
strikers in the 1970’s strike and was reinstated in 1981 after
the issuance of a Board Order.
Campbell worked on the Hospital’s fourth floor in 1990,
assigned to the first, or 7 a.m. to 3:30 p.m. shift. Her imme-
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
diate supervisor at the time was Teresa Newsom. Newsom
was, and is, the unit manager for the telemetry unit located
on the Hospital’s fourth floor. Newsom has worked at the
Hospital for 14 years, having held management positions
since 1983. Newsom was responsible for the work schedule
of employees assigned to the fourth floor. She prepares 4-
week schedules for fourth floor personnel, which are pub-
lished before the expiration of the current schedule and were,
in the fall of 1990, posted on a bulletin board at the nurses’
station. As a matter of scheduling policy, employees have
been instructed by Newsom to advise her of requests for spe-
cific days off not later than the third Monday of the current
schedule. Campbell knew of and had conformed to this
scheduling policy in the past.
The events leading to Campbell’s leaving the employ of
the Hospital as described by Respondent’s witnesses follows.
On August 9, at about 9:30 a.m., Campbell paged Newsom
on Newsom’s pager. Newsom returned the call from the
nursing office and, in conversation with Campbell, was in-
formed by Campbell that she needed August 22 and 23 off
from work because her son was having surgery. Newsom in-
quired about the nature of the surgery and was informed that
it was elective, and that her insurance carrier had preap-
proved the surgery through August 23. Newsom also learned
from Campbell that her son’s surgery had been pending for
3 months.
Newsom told Campbell that she was ‘‘downstairs’’ but
that she would call her back after checking the schedule.
Newsom checked the schedule and called Campbell, inform-
ing her that there ‘‘was not enough personnel on the floor’’
to allow her to grant Campbell’s request to be off on August
22 and 23. Newsom asked Campbell to see if the surgery
could be rescheduled for another 2 days and to call her back.
Gibson said, ‘‘fine,’’ and hung up.
Campbell did not call back, instead approaching Newsom
at the fourth floor nursing station the next day, Friday, Au-
gust 10. While standing in the vicinity of the telephone,
Campbell told Newsom that she had the days changed to Au-
gust 16 and 17, and asked Newsom to check the schedule
to see if Newsom could allow Campbell to have those days
off. Newsom and Campbell checked the schedule and
Newsom told Campbell that she could have a vacation day
on Thursday, August 16. Newsom asked Campbell if she
could trade shifts with someone else on Friday, however, be-
cause there were not enough people scheduled for Friday.
Campbell said she would try to trade with someone.
On Monday, August 13, Campbell came to Newsom’s of-
fice during the morning hours. Campbell was upset. Camp-
bell confronted Newsom and told her that she was going to
have to quit. Newsom asked why and Campbell informed her
that she could not get anybody to trade shifts with her so that
she could have Friday, August 17, off. Newsom told Camp-
bell to wait, that they needed to talk about the matter further,
but that a witness was necessary. The two of them proceeded
to the first floor nursing office, with Campbell complaining
about the unfairness of the situation and the importance of
her son’s surgery.
No one was in the nursing office when Campbell and
Newsom arrived, so Newsom suggested that they go to Shir-
ley Coleman’s office on the fifth floor. When arriving there
and locating Coleman, Newsom explained to Coleman why
they were there and explained the problem. Campbell said
she had not been able to trade shifts. Coleman asked if she
had tried any of the other shifts. Campbell said she did not
know she could do that. Newsom asked Campbell what her
off-day was so that they could see about trading. Campbell
said that ‘‘today’’ was her off day and that she had come
to work so that Newsom could give her another day off.
Newsom told Campbell that it looked like she was going to
have to give her another day off. Newsom left and went to
the nursing office. Shortly thereafter, Campbell left telling
Coleman that she was going back to the fourth floor. Cole-
man joined Newsom in the nursing office because she felt
that Carter needed to know what was going on on her floor.
While Newsom and Coleman were explaining to Carter
what had just happened, Campbell came into the office and
requested a resignation slip. Carter asked what was the mat-
ter and Campbell said she was just going to have to quit be-
cause she could not get off for her son’s surgery. Newsom
and Coleman left the nursing office at that point. Shortly
thereafter, Carter called Coleman and asked her to return to
the nursing office, that Campbell had resigned, and requested
Coleman escort Campbell to the fourth floor to collect her
things.
In the resignation form signed by Campbell, dated August
13, she stated her reason for leaving: ‘‘I quit because I feel
I am unfairly treated.’’
Campbell’s version of the events in question shares only
the foregoing reason for leaving in common with Respond-
ent’s version. The following is her description of the events
that led to her leaving her employment. She began her testi-
mony by relating the substance of an alleged earlier con-
versation with Newsom, that is the subject of independent
complaint paragraphs, specifically, paragraphs 5(a)(i), (ii),
and (iii). Campbell testified that on August 1, she, two other
employees, and Newsom had a conversation at the nurses’
station. According to Campbell, Newsom told the employees
that she was against the Union and that the employees were
not ‘‘to go to other floors and discuss anything. That we’re
not allowed.’’ Campbell testified that Newsom restricted con-
versations about the Union only to breaks away from the
floor and at lunch. According to Campbell, prior to this date,
she and other employees were allowed to go off their floor
on breaks. She also testified that thereafter, another employee
voiced antiunion statements while working. There was no
showing that this statement was in the presence of or over-
heard by a supervisor, however. Newsom flatly denied mak-
ing these statements. Based on my credibility findings with
respect to Campbell, I will not credit her testimony about
Newsom’s alleged restrictions. At least two other employees
employed on the fourth floor testified in this proceeding and
neither corroborated Campbell’s assertions in these regards,
though one of these, Alpha Carroll, was a staunch union sup-
porter. Campbell signed a union authorization card on Au-
gust 6, and obtained the signature of other employees on sev-
eral more.
The surgery required for her son had to be performed in
Lexington, Kentucky, and Campbell was informed by the
surgeon that it would be done August 14 and 15. To get time
off to be with her son, Campbell phoned Newsom on August
9. Newsom would not talk with her saying she did not have
the time. Campbell called Newsom again later in the day and
made her request. Newsom said Campbell could not have
days off ‘‘for anything.’’ Campbell had at least 1 week’s va-
1133METHODIST HOSPITAL OF KENTUCKY
cation accrued at this point. Campbell then called the sur-
geon and rescheduled the surgery for August 16 and 17.
Campbell returned to work on Friday, August 10. She testi-
fied, ‘‘I tried to talk to Teresa about it again, Ms. Newsom.
And she said that I couldn’t have it off.’’ Campbell then
asked if she could have the time off for her Independence
Day Holiday that she had worked but had not had time off.
In addition, she offered to come in to work on her next day
off, Monday, August 13. Newsom made no reply that Camp-
bell took as an indication of approval. Instead, Newsom said
that Campbell had to find another employee to work in her
place. Campbell testified that she asked everyone on the day
shift to trade with her, but no one could take her place.
On Monday, August 13, Campbell went to work on her
day off, expecting that she could be off for her son’s surgery.
Campbell also checked with the surgeon’s office and was
told that her son’s surgery could not be put off because in-
surance approval was running out. That morning, Campbell
went to Newsom’s office to talk about the surgery. Campbell
again explained her problem, only to be told by Newsom, ‘‘I
told you you couldn’t have a day off for no reason.’’ Camp-
bell replied, ‘‘Do I have to quit to be able to help my son
have surgery?’’ At that point, Newsom accused Campbell of
threatening her, and took Campbell to see Carter. She was
not in, so they went to see Coleman.
Campbell recalled that Newsom ‘‘talked to me real mean.
She said I was lying about the approval of the insurance
company.’’ Campbell tried to explain her side of the story,
‘‘But Teresa Newsom kept on interrupting, and Shirley said,
‘Phyllis, when’s your next day off?’’’ Campbell said that
today was her day off, but that she had come in to work in
order to be off later in that week for her son’s surgery. At
that point, Newsom accused Campbell of ‘‘making your own
schedule . . . .’’ Newsom left the room to find the work
schedule and Campbell began crying. Campbell left the room
and went to the cafeteria. She was called back to the nurses
office by Coleman. Once inside the office, Carter asked what
was going on and Campbell explained the problem. She
asked Carter if she had to quit for her son to have surgery.
At that point Carter left the office and returned with a res-
ignation form and instructed Campbell to sign it and put the
reason for signing it. Campbell did sign the resignation.
I have carefully considered the testimony of the witnesses
testifying about the events surrounding the resignation of
Campbell and believe that the testimony of Respondent’s
witnesses Newsom and Coleman is more consistent, and
more credible than that given by Campbell. Respondent on
brief has pointed out several inconsistencies in Campbell’s
testimony with which I concur. For example, Campbell at-
tempted to portray Newsom as wholly unwilling to consider
any relief from the schedule in order to enable Campbell to
be off to attend her son’s surgery. On direct examination by
the General Counsel, Campbell said a number of times that
Newsom told her that she could not be off ‘‘for any [or no]
reason.’’ Yet, she admitted that on Friday, August 10,
Newsom told her she could be off if she could ‘‘get some-
body to work in my place,’’ and volunteered that Newsom
did not tell her that the person with whom she could trade
‘‘could be on the evening shift or nights.’’
If, as Campbell attempts to establish, Newsom remained
unwilling to even consider her request for a deviation from
the schedule as late as Monday, August 13, when she pur-
portedly told Campbell, ‘‘I told you you couldn’t have a day
off for no reason,’’ her admission concerning Newsom’s
prior advice about shift-trading belies any such inference.
Further underscoring this point was Campbell’s failure to re-
veal, until cross-examination, that Newsom, in fact acceded
to her request to reschedule Thursday, August 16, as a vaca-
tion day when Campbell informed her of the doctor’s will-
ingness to perform the surgery on August 16 and 17. In her
direct examination, by contrast, Campbell said only that
when, on the morning of August 10, she informed Newsom
of the rescheduling, Newsom made the statements that
Campbell ‘‘couldn’t have it off,’’ and, inconsistently, that
Campbell ‘‘had to get somebody to work in [her] place.’’
By allowing the rescheduling of 1 of the 2 days Campbell
sought to be off, and authorizing a trade of shifts to accom-
modate the second of those requested days, the Hospital, in
my opinion, made a reasonable attempt to accommodate its
staffing needs and Campbell’s need to be off. As of the day
she resigned, August 13, Campbell had several options open
to her aside from resigning. She could have continued to
seek someone with whom she could trade days, having not
explored the possibility of trading with someone on another
shift. She could have awaited further word from Newsom
who had just advised her that she was going to recheck the
schedule. She could have contacted her son’s doctor and/or
her insurance carrier to ascertain the options she had with
them to reschedule the surgery. She could have called in on
Friday, August 17, and suffered, at worst, an unexcused ab-
sence and whatever arose therefrom, as she had done a
month or so earlier in connection with a problem with her
car. Though she testified that she thought she might be fired
when asked why she did not use this last option, I cannot
see how that fear is justified in light of her previous experi-
ence calling in that summer. Even if she were correct, the
outcome would be the same as quitting.
I also have trouble finding that Respondent had knowledge
of her union support. Campbell’s name was not on list of
employee organizers and did not testify about any overt
union activity that would have come to the attention of Re-
spondent. Unlike Webb, Hall, and Gray, whose union sup-
port was either readily observable or was admitted to Re-
spondent’s management, Campbell did not make herself visi-
ble as a union supporter. I think it is reaching to make the
assumption that since Campbell went on strike in 1971 that
she was in support of the Union in 1991. In any event, I do
not believe union animus played a part in Respondent’s treat-
ment of Campbell in her request for days off. It was not con-
vincingly demonstrated that the involved department of the
Hospital acted differently toward Campbell than other em-
ployees, and contrary to Campbell’s testimony, I find that the
Hospital was still affording Campbell ways to satisfy her
need to be off at the time she resigned. I therefore find that
Campbell voluntarily quit her employment and was not con-
structively discharged as alleged in the complaint. To date,
she has not requested reemployment with the Hospital.
H. Did Respondent Unlawfully Engage in Surveillance
of Employees by Use of Employee Support Teams?
This section discusses complaint paragraph 5(f). In or
about September 20, Respondent instituted what it calls Em-
ployee Support Teams (teams), and what some employees
call the ‘‘Rat Patrol.’’ The teams were groups of manage-
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment personnel from all departments who purportedly were
supposed to roam the Hospital’s floors and be of assistance
to the shift coordinators in case they needed help. This
makes little sense because many of the team members had
no professional training to assist in the areas they roamed.
For example, how team members such as the Hospital’s
chaplain and its maintenance director could assist the nursing
department shift coordinators is speculative at best. Yet they
were on the team assigned to the nursing department.
Deskins admitted they could not assist in patient care duties.
Given the timing of the formation of the teams, and their
disbandment after the end of the organizing campaign, I be-
lieve their sole function was to surveil the employees and to
stifle any worktime union discussions and activity. Indeed,
team member and Pharmacy Manager Bob Reeser virtually
admitted this was the purpose of the teams. In response to
a question concerning the last time he worked as a team
member, he answered, ‘‘I am not even sure exactly if it went
into 1991 on the surveillances or not.’’
Though Respondent might argue that this was just an un-
fortunate choice of words, the evidence strongly supports this
candid description of the mission of the support teams.
Rapunzel Hall testified that Reeser, her department manager,
told her that he had been assigned to the team because of
her union activities. Though Reeser testified that he could
not recall making such a statement, I credit the testimony of
Hall. She was a very credible witness and her testimony
rings true, especially in light of Reeser’s admission noted
above.
Other employees described their encounters with the team.
Lisa Smith, RN, testified, ‘‘They’d [team members] just sit
around or stand at the nurses’ station and they’d talk to us,
that sort of thing.’’ Barbara Coleman, nurses aide, saw the
same thing. Linda Gunnels, LPN, remembers the members
coming around to her floor, ‘‘Some of them would talk,
some of them wouldn’t.’’ She also recalled that Myra
Checko from the personnel relations office ‘‘would sit down
and tell ghost stories.’’ Jeffrey Williamson, RN, testified that
the team members, ‘‘Mainly they just walked around and ob-
served things.’’ Bruce White, a painter in the maintenance
department, testified that one night he was working late in
the nurses lounge when Supervisor Hiram Little from the ad-
missions office stopped by. According to White, Little was
on team duty. Little told White that he did not know what
his team duties were, but that he had been told to ‘‘ask peo-
ple if they need help.’’ Little, half jokingly, asked White if
he needed help. White replied, ‘‘Not unless you want to help
me hang wallpaper.’’ Little laughed and walked on.
Most of the employee witnesses in this proceeding called
the teams the rat patrol, and viewed the team members as
monitoring their activities or spying on them. I find such sur-
veillance to be coercive, having as its purpose the chilling
of union support. This is especially true when one considers
that at the same time the rat patrol began operating, Re-
spondent’s supervisors began enforcing the no-solicitation
policy of the Hospital by removing union literature from bul-
letin boards, and began informing employees not to talk
about the Union at work. Under the circumstances, I find Re-
spondent’s rat patrol to constitute unlawful surveillance in
violation of Section 8(a)(1) of the Act. Baddour, Inc., 281
NLRB 546 (1986); Atlantic Forest Products, 282 NLRB 855
(1987); and New Process Co., 290 NLRB 704 (1988).
I. Did Respondent Unlawfully Restrict the Distribution
of Union Literature in its Parking Areas?
This section discusses complaint paragraphs 5(p) and (Q).
It is possible that the evidence supporting these allegations
also supported complaint paragraph 5(j). I cannot find in the
record, however, evidence clearly relating to the allegations
of paragraph 5(j) and feel compelled to dismiss it for that
reason.
With respect to paragraphs 5(p) and (q), the evidence
shows that on several occasions during the campaign, groups
of employees gathered together before the start of their shifts
to distribute union literature to those employees who were
changing shifts. Each time, the groups of union supporters
would stand outside the hospital near the employees’ en-
trances, and each time, they were ordered off Respondent’s
property by the hospital security guards.
Alpha Carroll, the fourth floor ward clerk, recalled that
one time in September 1990 she was with other employees
in the back parking lot one morning when the security guards
told them to leave. On another occasion in October, a group
of employees went out early in the morning to pass out
union literature outside the front of the hospital when two se-
curity guards came out and told the employees that they
could not pass out their union literature on hospital property,
that they would have to go out to the highway. Barbara
Coleman recalled that one morning, she was with a group of
15 to 20 employees at the entrance to the Hospital to pass
out union literature before shift change. Coleman testified
that while she and the other employees were outside passing
out the literature, two security guards told them they could
not pass out literature there. At that time Coleman was stand-
ing about 10 feet from the main highway near the entrance
to the Hospital. Additionally, the guards asked for the names
of the employees passing out literature.
Ruth Thacker, an employee in medical records, testified
that she was with other employees on the morning of Octo-
ber 15, near the front door of the Hospital, when House-
keeping Supervisor Ron White came out with two security
guards and told the employees that they would have to move
to the public highway to pass out their union literature.
Thacker testified that they did as ordered, but once on the
edge of the highway, a security guard asked her for her
name. The security guards remained near the union support-
ers for 15 minutes. Apparently because Thacker had refused
to divulge her name to the security guard, White followed
her into the medical records office once she began work that
morning. Thacker testified that he then asked her for her
name. Again, she refused to give it and instead pointed to
another supervisor, and suggested to White that he ask her
what her name was.
Respondent offered no explanation for its actions in this
regard, only attempting to show during cross-examination of
employee participants in the actions that some of the
handbillers might have been blocking the ingress and egress
of other employees, patients, or visitors. I cannot find that
Respondent established that the handbillers were actually
blocking any entrance for this cross-examination. Moreover,
no explanation was offered for the guards telling the
handbiller to leave rather than simply move a few feet away
from an entrance, if in fact the handbillers were blocking
such entrance. There was likewise no explanation for asking
for the names of the handbillers. Having totally failed to
1135METHODIST HOSPITAL OF KENTUCKY
offer any legitimate reason for requiring the handbillers to
leave the property or for asking their names, I find that Re-
spondent has violated Section 8(a)(1) of the Act by both ac-
tions, as alleged in complaint paragraphs 5(p) and (q). See
Mini-Togs, 304 NLRB 644 (1971); NTA Graphics, 303
NLRB 801 (1991); St. Luke’s Hospital, 300 NLRB 836
(1990); Southern Maryland Hospital Center, 293 NLRB
1209 (1989); Baddour, Inc., 281 NLRB 546 (1986).
J. Did Respondent’s Supervisors Linda Saylors, Lois
Jones, and Barbara Ratliff Discriminatorily Restrict
Employees Talking About the Union and
Distributing Union Literature?
This section discusses complaint paragraphs 5(g), (n)(i),
and (o). Linda Gunnels, an employee of the Hospital during
1990, testified that on October 12, she, employees Ivan
Hackney and Shirley Golf, and Supervisor Linda Saylor were
together in the hospital cafeteria. Gunnels asked Saylor ‘‘if
and where are we allowed to talk union at the Hospital?’’
According to Gunnells, Saylor responded, ‘‘. . . we could
not talk it—talk union in any patient care areas. That it
would have to be on our break in the coffee shop or the caf-
eteria.’’ Gunnels then asked Saylor if employees were al-
lowed to bring union literature into the Hospital. Saylor said,
‘‘. . . what we brought into the Hospital in our pockets or
in our pocketbooks was our own private stuff. But if we
were going to hand out union literature, it had to be on our
breaks or lunch and it had to be in the coffee shop or the
cafeteria.’’
Saylor then left the group, returning in about 5 minutes.
According to Gunnell’s, ‘‘She said that she had went to
check to see if she had told me right about the union lit-
erature and talking the union. And she told me that we were
not allowed to talk the union in any patient care areas which
would involve the patient’s room, treatment rooms, operating
rooms, the hallways or corridors adjacent to patient care
areas or the solarium or nurses lounge.’’ Gunnels testified
that patients came into the nurses lounge to get coffee,
though not on a regular basis. The nurses lounge is a work-
ing area where employees get the reports given by changing
shifts, and where the employees can smoke.
Gunnells also testified that beginning in about July, em-
ployees were told to cease soliciting on working time in de-
fined areas of the Hospital. She did so, but on one occasion
thereafter she observed an employee in a patient care area
selling bows to another employee. There was no showing
that this incident was observed by a supervisor.
I can find nothing unlawful in Saylor’s conversation with
Gunnells, when the conversation is taken in its entirety.
In August, Supervisor Lois Jones called a meeting of the
employees on her floor. The meeting was held in the small
room behind the nurses station. There, Jones announced that
there was now a new policy in effect, that the employes
‘‘could not talk about the Union in the patient areas, in the
hallways, stairways, anywhere a patient might be.’’ Barbara
Coleman, a nurses aide who attended this meeting, testified
that she asked Jones if the no-union discussion prohibition
included the nurses lounge. Jones replied, ‘‘yes, that included
the nurses lounge.’’ Coleman testified that she had never
seen patients in the nurses lounge. On the other hand, Gun-
nels did testify that patients came into the nurses lounge for
coffee and that it was used for work, in that it was the place
the nurses gave reports to one another as shifts changed. As
with the Saylor/Gunnell’s conversation, I do not find Jones
statements unlawful.
Geraldine Coleman testified that on October 10, she asked
Supervisor Barbara Ratliff if she and Ruth Thacker were al-
lowed to talk about the Union in the office. Ratliff said no.
Coleman then testified that Ratliff said they could only talk
about it at break and at lunch. Coleman testified that employ-
ees in her department would occasionally sell Avon products
or Girl Scout cookies during worktime, admitting, however,
that they were told not to solicit during worktime. Although
there is no showing that Ratliff enforced the no-solicitation
rule she had announced to employees with respect to the sell-
ing of items at work, there is likewise no showing that she
ever stopped employees from talking about the Union during
worktime. She did not tell Coleman to cease talking about
the Union, she was asked the Respondent’s policy and was
given the official policy, which related to all solicitations. I
do not think her answer to the question under the cir-
cumstances violates the Act.
K. Did Respondent’s Supervisor Judy Steffey
Unlawfully Interrogate and Threaten Lisa Smith About
Her Union Activities and Promise a Promotion if
Smith Abandoned Her Union Activities?
This section discusses complaint paragraph 5(i). Lisa
Smith was a ward clerk for the Hospital in August 1990. In
September, she became an RN. She signed a union authoriza-
tion card in August. She testified that on September 12, she
had a conversation with Director of Nursing Education Judy
Steffey. According to Smith, Steffey commented what a
good job Tummons was doing and that if we gave him time,
he would make a change in things. She continued that if the
Union came in and Tummons had to play hardball, that he
could do that. She then told Smith that she wasn’t a ward
clerk anymore, that she was an RN and should act and talk
like an RN. Steffey said that Smith was presently a staff
nurse and that if she joined the Union, all she would ever
be is a staff nurse. On the other hand she said, if you don’t
join the Union, you can be a shift coordinator or a unit man-
ager. According to Smith, at this point Steffey began crying
and asked Smith what she thought about the Union and what
she had just said. Smith answered her stating that she was
on company time and can’t tell what she thinks about either.
She invited Steffey to call her at home and discuss it.
Steffey recalled the conversation began with Steffey con-
gratulating Smith on becoming an RN. According to Steffey
she told Smith that she was going to find her role as a ward
clerk and being an RN was going to be completely different.
The responsibilities would increase and that she would have
opportunities for advancement. As a ward clerk there is no
possibility for advancement. She testified that she avoided
the union campaign entirely because she knew that Smith
was a union supporter through rumors. She denied mention-
ing Tummons, promising promotions or for that matter, cry-
ing.
Both of these witnesses seemed credible. I will credit,
however, Steffey’s version of the conversation over Smith’s.
I cannot see why Steffey would have to ask Smith what she
thought about the Union when Smith was one of the Union’s
employee organizers. It is also difficult for me to believe
Steffey, who was obviously Smith’s friend, and one who had
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gone out of her way to assist Smith to become an RN, would
threaten her. Having credited Steffey’s version of the con-
versation, I will recommend that this complaint allegation be
dismissed.
L. Did Respondent Unlawfully Order Nurse Jeff
Williamson To Leave the Hospital When He
Was Off Duty?
This discussion relates to complaint paragraph 5(h). Nurse
Jeff Williamson testified that he knew of no policy of the
Hospital about employees visiting the Hospital when they
were off duty. He testified that he was informed he could not
do so after the campaign began. He recounted an incident in
the fall of 1990, when he was at the hospital, off duty, at
about 2 or 3 a.m. He testified he was in the cafeteria having
coffee talking with some friends. He went to the front lobby
to get a soft drink and was observed by Supervisor Patty
Akers. She asked what he was doing there. He had learned
in the cafeteria that another nurse’s mother was in the emer-
gency room, so for lack of a better reason, he told Aker he
was there to visit her. He got his soda, returned to the cafe-
teria, finished his visit with his friends, and swung through
the emergency room. Akers was there and told him that the
nurse’s mother had left. He then went back out the employee
entrance of the emergency room and was going down the
hall when security told him Akers had asked him to leave.
He asked why and was told it was because he was out of
uniform, off duty, and had no business there.
Akers testified that she saw Williamson in the Hospital’s
main lobby at about 4 a.m. one morning in the fall of 1990.
She testified that she asked him, ‘‘Jeff, you are not on duty,
are you?’’ Williamson said, ‘‘No.’’ She asked why he was
there, and he said he was visiting a friend, coworker Ivan
Hackney’s mother. Akers testified that she knew that Hack-
ney’s mother had been in the emergency room the evening
before. She went to see if the woman was in the Hospital,
and found that she had been discharged at 11:30 p.m. the
previous evening. She was in the emergency room verifying
this information when Williamson came into the emergency
room. Akers said, ‘‘Jeff, Ivan’s mother is not even a patient
in the hospital. You need to go home.’’
I find that ordering Williamson to leave the Hospital vio-
lates the Act. The Hospital did not show that it had a rule,
generally disseminated to the employees, restricting the right
of employees returning to the Hospital on their off-duty time.
The Board has established guidelines for such a rule to pro-
tect the right of off-duty employees to express their interest
in unions to employees on other shifts. I can understand
Akers having an interest in keeping off-duty employees out
of work areas so that they do not interfere with the duties
of on duty employees. But that reason would not apply to
the lobby of the Hospital or the cafeteria. Having no valid
rule in effect restricting the right of off-duty employees to
come on to the Hospital’s premises, and having no legitimate
reason for restricting Williamson’s access to the public, non-
patient care areas of the Hospital, I find that Respondent vio-
lated Section 8(a)(1) of the Act when Akers required him to
leave. See Tri-County Medical Center, 222 NLRB 1089
(1976); Southern Maryland Hospital Center, 293 NLRB
1209 (1989); and New Jersey Bell Telephone Co., 308 NLRB
277 (1992).
M. Did Respondent Unlawfully Render Assistance and
Support In the Circulation and Mailing of
an Antiunion Petition?
This section discusses complaint paragraph 5(m), which al-
leges that on September 14, Respondent, acting through
Maudie May, Carolyn Johnson, Sally Stamper, Debra
Battistello, Jean Shakey, Betty Martin, and Nina Reynold,
and by paying the cost of mailing, assisted, supported, and
approved of the circulation among its employees of a petition
to dissuade the Union from seeking to represent its employ-
ees.
What purports to be the petition in question is General
Counsel’s Exhibit 27, which in printed part reads:
Dear Anne Kempski,
We, the employees of Pikeville Methodist Hospital
want to thank you for your time put forth in forming
a Union. However, there are some employees who have
a different view than you. There have been a lot of
changes in the past few months within the hospital. We,
the employees, feel that these changes have been bene-
ficial to us. We are very pleased with the progress that
Pikeville Methodist Hospital has made. We believe that
a Union in this hospital is not needed! To some, your
time has been greatly appreciated. But to others, we be-
lieve that now is the time to leave things as they are
and as they are progressing. We believe that enough
time has been spent on the Union issue, and we do not
want to be Union duespayers.
The petition was signed by about 40 employees, including
those persons named in the involved complaint allegation
who are supervisory personnel. Judy Webb testified that on
September 14, she observed employee Joyce Morris, thought
by Webb to be a hospital courier, go into the lab and pass
a paper to the technicians working there. The technicians
read the paper and signed it. Being curious, Webb followed
her as Morris went into another part of the lab. She passed
a technician whom she asked what is was that Morris was
showing them. This technician told her it was a petition to
Anne Kempski telling the Union to ‘‘get on with it or get
out.’’ Following Morris, she saw three supervisors sign the
paper. These were Mary Jo Blackburn, Carolyn Johnson, and
Deb Battistello. On cross-examination, Webb testified that
she later saw General Counsel’s Exhibit 27 at the union of-
fice and made an ‘‘educated guess’’ that it was the paper
Morris was circulating. The General Counsel has the burden
of proving the complaint allegations and with respect to this
one, he has not done so. There is no proof that General
Counsel’s Exhibit was the paper being circulated by Morris.
There is likewise no proof that Respondent supported, as-
sisted, or approved of the circulation of General Counsel’s
Exhibit 27, or paid for its mailing. I recommend dismissal
of this allegation.
CONCLUSIONS OF LAW
1. The Respondent, Pikeville United Methodist Hospital of
Kentucky, Inc. nee The Methodist Hospital of Kentucky,
Inc., is an employer engaged in commerce within the mean-
ing of Section 2(2) and (6) of the Act and is a health care
institution within the meaning of Section 2(14) of the Act.
1137METHODIST HOSPITAL OF KENTUCKY
11 My finding that Respondent discriminatorily and unlawfully en-
forced its rules regard posting of literature is a general one and is
based on my findings that Respondent did in fact commit the acts
alleged in complaint pars. 5(a)(i), (g), (n)(ii), and (r)(ii).
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2. The Union, United Steelworkers of America, AFL–
CIO–CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has engaged in and is engaging in con-
duct in violation in violation of Section 8(a)(1) of the Act,
by:
(a) Acting through its agent, Lloyd Price, in August 1990,
soliciting grievances from employees and promising to rec-
tify those grievances, and taking an employee opinion sur-
vey, all with the intent to discourage employees’ support of
and activities on behalf of the Union.
(b) Acting through its supervisor, Cheryl Hickman, in Sep-
tember and October 1990, coercively interrogating employees
about their union activities and sympathies, threatening em-
ployees with unspecified trouble if they signed a union au-
thorization card, and prohibiting employees from discussing
the Union, all to discourage employees’ support of and ac-
tivities on behalf of the Union.
(c) Creating and utilizing so-called employee support
teams in the fall of 1990 for the purpose of surveilling its
employees to discourage employees’ support of and activities
on behalf of the Union.
(d) Discriminatorily enforcing its rules regarding posting
of material on bulletin boards by allowing the posting of
nonwork related material while prohibiting the posting of
union literature, to discourage employees’ support of and ac-
tivities on behalf of the Union.
(e) Acting through Supervisor Patty Akers, in September,
1990, discriminatorily denying access to the Hospital to an
off-duty employee, to discourage employees’ support of and
activities on behalf of the Union.
(f) Acting through Supervisor Ron White, in October
1990, impliedly threatening an employee who had been dis-
tributing union literature by asking her to identify herself and
asking the location of her supervisor, creating the impression
that her union activities were under surveillance, to discour-
age employees’ support of and activities on behalf of the
Union.
(g) Acting through its agents and security guards, in Octo-
ber 1990, telling its employees that they could not distribute
union literature in its parking lots and ordering them to
leave, to discourage employees’ support of and activities on
behalf of the Union.
(h) Acting through Supervisor Bob Ratliff, in October
1990, orally promulgating a rule prohibiting employees from
talking about the Union while eating lunch in the Respond-
ent’s paint shop and threatening to prohibit employees from
eating lunch in the paint shop, to discourage employees’ sup-
port of and activities on behalf of the Union.
4. Respondent has engaged in and is engaging in conduct
in violation of Section 8(a)(1) and (3) of the Act, by:
(a) Acting through Supervisor Phyllis Bowling, in October
1990, impliedly threatening an employee with loss of her job
unless she became antiunion, to discourage employees’ sup-
port of and activities on behalf of the Union.
(b) Giving its employee Judy Webb an unsatisfactory em-
ployee evaluation in September 1990, to discourage employ-
ees’ support of and activities on behalf of the Union.
(c) Giving its employee Rapunzel Hall, in November
1990, a written warning and changing her job duties, to dis-
courage employees’ support of and activities on behalf of the
Union.
(d) In November 1990, suspending and then discharging
its employee Robin Gray, to discourage employees’ support
of and activities on behalf of the Union.
5. The unfair labor practices committed by Respondent af-
fect commerce within the meaning of Section 2(6) and (7)
of the Act.
6. Respondent did not commit the other unfair labor prac-
tices alleged in the complaint.11
THE REMEDY
Having found that Respondent has engaged in conduct in
violation of Section 8(a)(1) and (3) of the Act, I recommend
that it be ordered to cease and desist therefrom and take the
following affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent unlawfully suspended on
November 8, 1990, and thereafter discharged its employee
Robin Gray, I recommend that it be ordered to offer her im-
mediate reinstatement to her former position or to a substan-
tially equivalent position, discharging if necessary anyone
hired to replace her, and to make her whole for any loss in
wages or benefits she may have suffered by reason of Re-
spondent’s discriminatory actions toward her. Backpay shall
be computed in accordance with the Board’s policy as set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest computed as set forth in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
Having found that Respondent unlawfully gave its em-
ployee Judy Webb an unsatisfactory employee evaluation on
September 9, 1990, and gave its employee Rapunzel Hall a
written warning and changed her job duties on November 1,
1990, it is recommended that the evaluation given to Webb
and the warning given to Hall be rescinded by Respondent.
Any reference to the suspension and discharge of Gray, the
unsatisfactory evaluation of Webb and the written warning
given to Hall should be expunged from their personnel
records and these employees be given written notice of such
removal and assured in writing that these unlawful suspen-
sions, discharges, evaluations and warnings will not be used
as a basis for future personnel actions concerning them.
It is further recommended that Respondent be ordered,
upon request by Rapunzel Hall, to restore her job duties
taken away from her on November 1, 1990.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Pikeville United Methodist Hospital of
Kentucky, Inc. nee The Methodist Hospital of Kentucky,
Inc., Pikeville, Kentucky, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(a) Soliciting grievances from employees and promising to
rectify those grievances, and taking an employee opinion sur-
vey, all with the intent to discourage employees’ support of
and activities on behalf of the Union.
(b) Coercively interrogating employees about their union
activities and sympathies, threatening employees with un-
specified trouble if they signed a union authorization card,
and prohibiting employees from discussing the Union, all to
discourage employees’ support of and activities on behalf of
the Union.
(c) Creating and utilizing so-called Employee Support
Teams for the purpose of surveilling its employees to dis-
courage employees’ support of and activities on behalf of the
Union.
(d) Discriminatorily enforcing its rules regarding posting
of material on bulletin boards by allowing the posting of non
work related material while prohibiting the posting of union
literature, to discourage employees’ support of and activities
on behalf of the Union.
(e) Discriminatorily denying access to the Hospital to an
off-duty employee, to discourage employees’ support of and
activities on behalf of the Union.
(f) Impliedly threatening an employee who had been dis-
tributing union literature by asking her to identify herself and
asking the location of her supervisor, creating the impression
that her union activities were under surveillance, to discour-
age employees’ support of and activities on behalf of the
Union.
(g) Telling its employees that they cannot distribute union
literature in its parking lots and ordering them to leave, to
discourage employees’ support of and activities on behalf of
the Union.
(h) Orally promulgating a rule prohibiting employees from
talking about the Union while eating lunch in the Respond-
ent’s paint shop and threatening to prohibit employees from
eating lunch in the paint shop, to discourage employees’ sup-
port of and activities on behalf of the Union.
(i) Impliedly threatening an employee with loss of her job
unless she became antiunion, to discourage employees’ sup-
port of and activities on behalf of the Union.
(j) Giving its employees unsatisfactory employee evalua-
tions, to discourage employees’ support of and activities on
behalf of the Union.
(k) Giving its employees, written warnings and changing
their job duties, to discourage employees’ support of and ac-
tivities on behalf of the Union.
(l) Suspending and discharging its employees, to discour-
age employees’ support of and activities on behalf of the
Union.
(m) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action deemed necessary
to effectuate the policies of the Act.
(a) Offer full and immediate reinstatement to Robin Gray
to her former or substantially equivalent position, discharg-
ing, if necessary, any employee hired to replace her, and
make her whole for any loss of wages or benefits she may
have suffered by her unlawful suspension and discharge, with
interest, in the manner set forth in the remedy section of this
decision.
(b) Rescind the unsatisfactory employee evaluation given
to Judy Webb on September 9, 1990, and the written warn-
ing given to Rapunzel Hall on November 1, 1990, and on
her request, restore Rapunzel Hall’s job duties taken away
from her on November 1, 1990.
(c) Expunge from its personnel records all references to
Robin Gray’s suspension and discharge, Judy Webb’s Sep-
tember 9, 1990 employee evaluation, and Rapunzel Hall’s
November 1, 1990, written warning, and give Robin Gray,
Judy Webb, and Rapunzel Hall written notice that this has
been done and assure them in writing that these unlawful ac-
tions will not be used as a basis for future personnel actions
concerning them.
(d) Preserve and, upon request, make available to the
Board or its agents for examination and copying all payroll
records, social security payment records, timecards, personnel
records, and reports and all other records necessary or useful
in complying with the terms of this Order.
(f) Post at its facility in Pikeville, Kentucky, copies of the
attached notice marked ‘‘Appendix.’’13 Copies of the notice,
on forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order, what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
In recognition of these rights, we hereby notify our employ-
ees:
WE WILL NOT solicit grievances from employees and
promise to rectify those grievances, and take an employee
1139METHODIST HOSPITAL OF KENTUCKY
opinion survey, with the intent of discouraging employees’
support of and activities on behalf of the Union.
WE WILL NOT coercively interrogate our employees about
their union activities and sympathies, threaten our employees
with unspecified trouble if they sign a union authorization
card, and prohibit our employees from discussing the Union,
to discourage our employees’ support of and activities on be-
half of the Union.
WE WILL NOT create and utilize so-called Employee Sup-
port Teams for the purpose of surveilling our employees to
discourage our employees’ support of and activities on behalf
of the Union.
WE WILL NOT discriminatorily enforce our rules regarding
posting of material on bulletin boards by allowing the post-
ing of nonwork related material while prohibiting the posting
of union literature, to discourage employees’ support of and
activities on behalf of the Union.
WE WILL NOT discriminatorily deny access to the Hospital
to an off-duty employee, to discourage employees’ support of
and activities on behalf of the Union.
WE WILL NOT impliedly threaten our employees who are
distributing union literature by asking them to identify them-
selves and asking the location of their supervisors, creating
the impression that their union activities are under surveil-
lance, to discourage employees’ support of and activities on
behalf of the Union.
WE WILL NOT telling our employees that they cannot dis-
tribute union literature in our parking lots and order them to
leave, to discourage employees’ support of and activities on
behalf of the Union.
WE WILL NOT orally promulgate a rule prohibiting em-
ployees from talking about the Union while eating lunch in
the Respondent’s paint shop and threaten to prohibit employ-
ees from eating lunch in the paint shop, to discourage em-
ployees’ support of and activities on behalf of the Union.
WE WILL NOT impliedly threaten our employees with loss
of their jobs unless they became antiunion, to discourage em-
ployees’ support of and activities on behalf of the Union.
WE WILL NOT give our employees unsatisfactory employee
evaluations, to discourage employees’ support of and activi-
ties on behalf of the Union.
WE WILL NOT give our employees written warnings or
change their job duties, to discourage employees’ support of
and activities on behalf of the Union.
WE WILL NOT suspend or discharge our employees, to dis-
courage employees’ support of and activities on behalf of the
Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guar-
anteed by Section 7 of the Act.
WE WILL offer full and immediate reinstatement to Robin
Gray to her former or substantially equivalent position, dis-
charging, if necessary, any employee hired to replace her,
and make her whole for any loss of wages or benefits she
may have suffered by her unlawful suspension and discharge,
with interest.
WE WILL rescind the unsatisfactory employee evaluation
given to Judy Webb on September 9, 1990, and the written
warning given to Rapunzel Hall on November 1, 1990, and
upon her request, restore Rapunzel Hall’s job duties taken
away from her on November 1, 1990.
WE WILL expunge from our personnel records all ref-
erences to Robin Gray’s suspension and discharge, Judy
Webb’s September 9, 1990 employee evaluation, and
Rapunzel Hall’s November 1, 1990 written warning, and
give Robin Gray, Judy Webb, and Rapunzel Hall written no-
tice that this has been done and assure them in writing that
these unlawful actions will not be used as a basis for future
personnel actions concerning them.
METHODIST HOSPITAL OF KENTUCKY, INC.